Memeorandum

March 05, 2007

As the Libby jury resumes deliberating this week it is worth keeping in mind a couple of points.

First, although they have access to trail exhibits (including a transcript if Libby's grand jury testimony), the jury does not have transcripts of any of the witness testimony they heard last month. Consequently, they are relying on their own memories plus any notes they took to recreate critical testimony. It it quite possible that on at least a few topics, the eleven jurors have offered an even dozen versions of that testimony - ironists among them may be wondering how they can convict Libby for forgetting what they themselves can not remember. With the passage of time, this may be helpful for the defense. Regardless, the jury is almost surely weighing a recreation of the evidence that differs from trial testimony on key points.

The second point is that the jury knows much less about the circumstances of the Libby case than do outside observers; for example, the jury is unaware of the controversy surrounding Andrea Mitchell and the question of whether she did or did not receive some sort of a Plame leak which she may or may not have passed to Tim Russert.

Eventually, the jury will come back with a verdict - if you don't like it, blame them, or the jury system itself. And if a few of them hit the talk show circuit, we may learn just how far from the actual evidence they happened to wander.

MORE: Current events - the judge and attorneys are dancing around the jurors notes. (1, 2)

RE THOSE GRAND JURY TRANSCRIPTS: Cecil Turner makes a good point - in the grand jury transcripts Libby and Fitzgerald review different legal theories as to why Libby might be lying, and Libby makes a number of good points in that exchange.

The defense theory would be (I suppose) that Libby and Cheney discussed Ms. Plame on July 7, following the Wilson op-ed; Libby then lied and risked legal peril simply to spare his boss some embarrassment. Or more dramatically, Cheney told Libby that Ms. Plame's status was classified on July 7, so Libby lied to conceal that.

Since Cheney was not called, and since no evidence was presented showing that Grenier, Harlow, Schmall, Grossman, or anyone else was aware of her status or considered it to be an issue, the second scenario seems unlikely, to say the least. I would have thought that if Fitzgerald had a witness prepeared to testify that he told Cheney about Ms. Plame's status, we would have heard from that witness, and Cheney as well.

February 27, 2007

Libby-Cheney apologists have argued over and over that Cheney had a
right to be angry because Wilson said that Cheney had sent him to
Niger. But Wilson said no such thing. In his New York Times
piece, Wilson wrote only that he had been "informed by officials at the
Central Intelligence Agency that Vice President Dick Cheney's office
had questions about a particular intelligence report.'' That was true.

Please. If Wilson's only relevant statement was the July 6 op-ed, why were the White House and State Dept responding to his charges in June - eerie prescience?

Actually, they were responding to these May 6 and June 13 Kristof columns and the misconceptions they fueled. Here we go, May 6:

I'm told by a person involved in the Niger caper that more than a year
ago the vice president's office asked for an investigation of the
uranium deal, so a former U.S. ambassador to Africa was dispatched to
Niger.

And June 13:

Condoleezza Rice was asked on "Meet the Press" on Sunday about a column
of mine from May 6 regarding President Bush's reliance on forged
documents to claim that Iraq had sought uranium in Africa. That was not
just a case of hyping intelligence, but of asserting something that had
already been flatly discredited by an envoy investigating at the behest
of the office of Vice President Dick Cheney.

And for laughs, here is Chris Matthews insisting, *after* the Wilson column came out, that Wilson was sent "at the behest" of the Vice President.

Public perceptions can be hard to change, as Mr. Dionne demonstrates.

MORE: IIRC, somewhere in Grossman's testimony he says that, in talking to Wilson in June, it seemed that Wilson believed he had been sent by the VP. And folks paying attention during the trial noticed that Valerie Wilson wrote the memo recommending/endorsing her husband for his Niger trip on Feb 12; Cheney asked his questions on Feb 13.

WHERE IS THE EVIDENCE: From Dionne, emphasis added:

Whatever the jury decides, Fitzgerald has amply demonstrated that
Cheney directed Libby to destroy Wilson's credibility, partly by
leaking that his wife, Valerie Plame Wilson, was a CIA operative who
had suggested Wilson was well qualified to investigate the claims in
Niger.

Is "amply demonstrated" a new threshold of proof? How does it compare to "reasonable doubt"?

February 26, 2007

A number of commenters here have praised the reporting of Matt Apuzzo of the Associated Press for his effort on the Libby story. Let me just add a "Well done", and ask someone to drop the contact info for his editor in the comments (I thought I saw it last week some time).

I know my fellow righties and I find plenty to criticize in the mainstream media, and the AP has certainly drawn our ire on occasion, but I am happy to give credit where due. This Libby case has been a long and complicated story and Mr. Apuzzo has done an excellent job keeping his facts in a line.

Well, Friday is way to quick for a hung jury, and I expect they will hang themselves on a few counts before they hang Libby, so I am planning for a result next week.

I will offer this Bold Prediction - win, lose, or draw, Libby never spends a day in prison. He will remain free pending appeals; if the case is remanded, it will be dropped; otherwise, he will be pardoned.

And more Bold Predictions - this "investigation" (which did not make a serious attempt to establish Ari Fleischer's or Tim Russert's credibility by calling John Dickerson and David Gregory as well as Andrea Mitchell) is over, and Fitzgerald will not be in charge of the appeals. Why not? Well, partly because his own conduct, including but not limited to his outrageous close, will be one basis for the appeal.

February 22, 2007

If the NY Times is gracious enough to serve me crow, I should be gracious enough take a healthy helping - contra my complaint of a few days back, the Times has revised their "Diary of a Leak" coverage of John Hannah's testimony.

Here is their original text describing Special Counsel Fitzgerald's cross examination of John Hannah:

Mr. Hannah conceded that if Mr. Libby took two hours out of his busy
day - as he did to meet with Ms. Miller - it meant Mr. Libby considered
Ms. Wilson a key issue.

My point - Mr. Fitzgerald had asked a more or less rhetorical question noting that if Libby spent two hours with Judy Miler it must have been important to him; however, he had not mentioned "the wife" in his question, and most of the meeting had been devoted to Libby's presentation of the secretly declassified National Intelligence Estimate.

The revised Times:

Prosecutor Patrick suggested that Mr. Libby would have devoted time
only to matters of great concern to him in the week of July 6, 2003. He
asked Mr. Hannah that if Mr. Libby spent "an hour or two" on something
during that week, whether that could be construed as something
important to Mr. Libby. "Well, with regard to me, yes," Mr. Hannah
replied. Left unsaid in the exchange was undisputed testimony that Mr.
Libby spent nearly two hours on July 8, with Ms. Miller.

Hard to fault that as it stands alone. My one quibble is really more a comment on the inherent problem of doing a summary of this case - most of the details other than the discussions of Ms. Plame have been summarily dismissed.

For example, here is the Judy Miller summary:

PROSECUTION: Mr. Libby first told her about Ms.
Wilson's identity on June 23, 2003, saying that she worked for the
"bureau," a reference she first thought was to the F.B.I.
but which she soon realized meant a division of the C.I.A. He discussed
the agent with her again on July 8.

DEFENSE: The defense brought up several occasions
in which Ms. Miller acknowledged a weak memory and seemed not entirely
certain of the notes she made after meeting with Mr. Libby. Ms. Miller
admitted that she heard about Ms. Wilson from sources other than Mr.
Libby but she could not remember who those people were.

One might be left thinking that Judy Miller and Libby discussed nothing other than Ms. Plame, which is not accurate. But this is a summary.

Early in the Fitzgerald case I wrote the Wilson Gambit in which I said," The Wilson Gambit was a stealth operation undertaken outside normal procedures and supervision, used as a political weapon, complete with lies spread by a cooperative media establishment interested in bringing down a leader and his policies which they detest" . http://www.americanthinker.com/2005/11/the_wilson_gambit.html :

Azaghal, a former law enforcement officer and regular Just One Minute poster has taken a close look at what we learned as the Libby trial proceeded and concludes in an email to me that my view has been born out:

"

I've been puzzling over the circumstances surrounding the referral letter that CIA sent to DoJ in what is commonly referred to as the Plame case. My puzzlement arises particularly in light of what Victoria Toensing wrote in the Washington Post on 02/18/2007. First, here are four statements relating to the referral:

Toensing in WaPo

THIS GRAND JURY CHARGES THE CIA for making a boilerplate criminal referral to cover its derrierre.

The CIA is well aware of the requirements of the law protecting the identity of covert officers and agents. I know, because in 1982, as chief counsel to the Senate intelligence committee, I negotiated the terms of that legislation between the media and the intelligence community. Even if Plame's status were "classified"--Fitzgerald never introduced one piece of evidence to support such status -- no law would be violated.

There is no better evidence that the CIA was only covering its rear by requesting a Justice Department criminal investigation than the fact that it sent a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure.

Judge Reggie Walton to the trial jury:

Walton announced that not only did the jurors not know Mrs. Wilson's status but that he didn't know it, either. "I don't know, based on what has been presented to me in this case, what her status was," Walton said. "It's totally irrelevant to this case." Just so there was no mistake, on January 31 Walton said it again: "I to this day don't know what her actual status was." (From an article by Byron York, NR, 02/05/2007)

Team Fitzgerald to Team Libby:

But in a letter to the Libby team last Tuesday, Fitzgerald's deputy, Kathleen Kedian, said the special prosecutor will not give up the referral — and that Libby simply did not need to know what was in it. "After consultation with the CIA, we advise that we view any such documents in our possession as not discoverable," Kedian wrote. "The documents remain classified and contain information compiled for law enforcement purposes that is neither material to the preparation of the defense, nor exculpatory as to Mr. Libby." (From an article by Byron York, NR, 02/27/2007)

Deputy AG Comey to Special Counsel Fitzgerald, 12/20/2003:

I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity ...

What can we draw from these four statements?

1. I assume that Toensing doesn't just mouth off without knowing basic facts. She asserts as a fact that the referral was for "a boiler-plate referral regarding a classified leak and not one addressing the elements of a covert officer's disclosure." I have to believe she has good information for that assertion, namely that the referral was general in nature and specifically did not address the elements of Plame's status that would allow a reader of the referral to come to preliminary opinion as to whether Plame was "covert" for purposes of the Intelligence Identities Protection Act (IIPA).

2. Judge Walton's statement to the jury would appear to confirm Toensing's assertion, because if the referral had addressed the question of Plame's covert status he would be unlikely to make such a statement to the jury, nor tell Libby's attorneys that there was no relevant information in the referral that would be of any use to them. It seems unlikely that the CIA could have sent a referral regarding the disclosure of a covert officer's indentity without presenting prima facie evidence that that officer did in fact qualify as "covert" under the IIPA--the CIA could hardly have said, hey, we don't know whether our own employee was covert but we want DoJ and the FBI to investigate it. Therefore, again, the referral would seem not to have been based on the IIPA.

3. But, running counter to these indicators is Comey's delegation of "authority" (not of "function" as the statute reads) to Fitzgerald, which specifically states that it relates to "the alleged unauthorized disclosure of a CIA employee's identity..." What strikes me about this delegation is that it makes no reference to specific criminal statutes that may have been violated. It essentially states: here is a factual situation, investigate it. Now, there was in fact a very public allegation that a specific statute had been violated: the IIPA. Anyone who had followed the whole Plame kerfuffle in the newspapers and on the internet would have expected that the IIPA, which was referenced almost immediately after Robert Novak's article which referenced Plame appeared. Moreover, as Toensing knows better than anyone, that statute was written as a direct response to--as a solution to--the problem of unauthorized disclosures of covert officers' identity. What's going on here?

4. The answer may lie in the wording of Comey's delegation. Rather than referencing "the alleged unauthorized disclosure of a [covert] CIA [officer's] identity..." the delegation only makes a vague reference to an "alleged unauthorized disclosure of a CIA employee's identity..." Viewed through this prism, Comey's phrasing may constitute confirmation of Toensing's assertion: the referral makes no reference to covert status but only vaguely suggests that the disclosure of Plame's employment somehow violated a statute prohibiting unauthorized disclosure of classified information.

5. In the event, the investigation disclosed no violations of law whatsoever. Nevertheless, in his closing statement Fitzgerald made repeated references to the possibility that a covert officer's identity had been disclosed maliciously and that people might die as a result--in spite of the fact that the referral letter apparently never referenced covert status as an issue.

6. Beyond pointing up the essentially unethical nature of the Libby prosecution--long obvious--these factors suggest to me that there may have been a type of bait and switch at the heart of the entire investigation. The operation of this bait and switch relied on the public outcry in the MSM about the disclosure of a covert officer's identitity. The reality, if the above analysis is correct, is that the referral letter did not reference such a possibility because it was known that Plame was not "covert" for purposes of the IIPA. The relevant officials at CIA and DoJ knew that this public scenario, replete with images of Administration officials frog marching out of the White house, bore no relation to the reality of the situation--especially in light of what those officals had learned from Richard Armitage. So, the investigation was an open ended warrant to find a violation of any statute or, failing that, to induce a process violation in the course of the investigation. The bait and switch relied on the public hue and cry to provide cover for turning the White House inside out in search of a crime--any crime.

7. The real targets of the investigation (Cheney, Rove, Libby) would be told that they were not targets as such but merely witnesses. They would be required by the president to appear over and over before the Grand Jury, ostensibly to give evidence to assist the investigation of what publicly appeared to be the disclosure of a "covert" officer's identity. These targets would rely on the Special Counsel's representations because they had not committed the acts that appeared from public statement's--including Comey's letter--to be the focus of the investigation. The Special Counsel had deniability in the form of Comey's letter, although all Fitzgerald's actions reveal all too clearly that they were in fact targets and not merely witnesses. No doubt the Special Counsel hoped that the targets' sense of their own innocence of what was publicly alleged would lead them to reveal something factual situation that could be construed as a criminal violation--or, failing that, become involved in a process violation. Had the investigation in fact concerned the disclosure of a covert officer's identity, the true target would of course have been Armitage. The lack of prosecutorial interest in Armitage gives the game away.

8. Finally, the release of all 8 hours of Libby's testimony before the Grand Jury disclose the inordinate amount of time Fitzgerald spent grilling Libby about the declassification of the National Intelligence Estimate (NIE) and when Libby talked to reporters about that. This is a clear indication that Fitzgerlad was fully aware that there was no hope for a violation of the IIPA, despite the outrageous statements he made to the trial jury. It is further apparent from the record that the CIA did not want the declassification of the NIE to take place quickly even though that left the Administration hanging out on a cliff, unable to respond to Wilson's charges. Moreover, when DCI Tenet made his July 11 mea culpa he refused to do what the Administration wanted him to do--state publicly that the CIA, not the Office of the Vice President (OVP) had sent Wilson to Niger.

From all the above, it is clear beyond dispute that this entire disgraceful episode was manufactured deceitfully as part of a campaign to undermine and even bring down the Bush Administration."

Clarice Feldman

On edit:American Thinker has retitled and edited this to put in urls for the cited material.
You can find thea article at http://www.americanthinker.com/blog/2007/02/bait_and_switch_and_trap_the_r.html

February 21, 2007

Larry Johnson discredits himself - he ought to keep a civil tongue when speaking of his betters. He also ought to end his campaign to confuse the media:

Congratulations to Victoria Toensing, former Reagan Administration
Justice Department official, for plumbing new depths of delusion and
crazed fantasies in her latest Washington Post op-ed. Ms. Toensing's
piece--Trial in Error--should have been titled, "I Am Ignorant of Basic Facts". She offers up two special gems:

Valerie Plame was not covert.

Ambassador Joseph Wilson (Valerie's husband) misled the public
about how he was sent to Niger, about the thrust of his March 2003 oral
report of that trip, and about his wife's CIA status

Mr. Johnson engages in histrionics but never addresses the substance of Ms. Toensing's point about whether Ms. Plame was "covert" as defined by the Intelligence Identities Protection Act. Her point is simple - the IIPA has several requirements a CIA agent must meet to be covered under the statute, i.e., "covert":

(4) The term "covert agent" means—

(A) a present or retired officer or employee of an intelligence
agency or a present or retired member of the
Armed Forces assigned to duty with an intelligence
agency—

(i) whose identity as such an officer, employee, or
member is classified information, and

(ii) who is serving outside the United States or
has within the last five years served outside the
United States; or...

This is not complicated - a CIA officer could have classified status without being "covert" under the statute, simply by having failed to meet the service abroad requirement. As to whether Ms. Plame met that requirement (and just what that requirement might be), no evidence has been introduced at this trial to resolve it. However, the gist of the dispute is simple - Joe Wilson's proponents, such as Larry Johnson, insist that "service abroad" can be as simple as flying overseas on official CIA business; Ms. Toensing argues that "service abroad" requires a specific overseas posting. This post notes that other laws make such a distinction, and I was a bit wistful here:

D. Service abroad means service on or after September 6, 1960, by an
employee at a post of duty outside the United States and outside the
employee's place of residence if that place of residence is a territory
or possession of the United States.

Of course, that is merely suggestive. I do have a specific proposal on the Plame situation, however - per this law, CIA officers get an upward adjustment in their pension for service abroad. Although I assume that specific time and place details of Ms. Plame's service record may be classified, it *may* be possible for her pension record to be reviewed by someone with credibility on both sides of the aisle (I nominate Jeralyn Merritt) to see whether she received credit for service abroad in the five years preceding June 2003.

In addition to his inability or unwillingness to comprehend and address Ms. Toensing's basic point about the distinction between "covert" and "classified", Larry Johnson reveals a failure to follow along at the Libby trial. For Mr. Johnson's edification, a high-speed introduction to February 2007 - let's hope he updates his talking points.

On the subject of Mr. Libby, Johnson wrote this:

She also is ignoring the facts introduced at the Libby trial. We have
learned that Scooter Libby, Karl Rove, Ari Fleischer, and Richard
Armitage told various members of the press that Valerie worked for the
CIA. In fact Scooter Libby was the one who told Bush press flack, Ari
Fleischer, about Valerie's covert status.

Libby told Ari Fleischer, and that is a "basic fact"? That "basic fact" is very much in dispute - Ari Fleischer also said he leaked to John Dickerson but not to Walter Pincus; both men disagree with Ari's recollection, as does Libby with respect to what he told Ari at their lunch on July 7.

And Mr. Johnson is behind the times here:

Let's take up a collection and get Victoria some help with her obvious
reading disability. The whole sordid affair got started in early
February 2002. Vice President Cheney asked his briefer about the claim
on 12 February 2002 and the
CIA convened an interagency meeting with Ambassador Joseph Wilson one
week later, February 19, 2002.

I'm pretty sure that Mr. Johnson does not need to use the phrase "reading disability" until he chooses to write an autobiography - here is a defense exhibit introduced at the trial, as flagged by Byron York. The gist - the DIA circulated a report on Feb 12 arguing that Iraq was seeking uranium in Niger; in response to inquiries from the INR and the DoD (and perhaps on instruction from her superiors), Ms. Plame wrote a memo on Feb 12 endorsing/suggesting the notion that her husband go to Niger so that the CIA could have an official response.

And (per the new defense exhibit) Cheney met with his CIA briefer and had questions about the DIA report on Feb 13. There is a certain logic to this, since Cheney's CIA briefing is normally first thing in the morning, and Cheney (or his staff) would not have gotten to the DIA report until later on the 12th.

My guess - if they are like any other bureaucrats in the world, the CIA did a bit of name-dropping and told folks that the Vice President was interested in this trip. This was arguably true, based on his questions of Feb 13, even though it is clear from the new timeline that his questions did not *initiate* the trip.

If Mr. Johnson could update his talking points, that would be lovely.

MORE: My goodness, does Larry Johnson even read his own posts? Evidently, reporters are slowly catching on to the distinction between "covert" and classified"; Johnson puts on his bright red nose and floppy shoes and tries to confuse the issue in a new post, but he only manages to embarrass himself and annoy me:

Sorry to again beat what some of you may believe is a dead horse, but a
reporter from a major news organization told me today that they are
still arguing in his/her newsroom about whether Valerie Plame was
covert. The journalist who told me this is a talented, smart person
but is still confused about the terms "covert", "cover", and
"non-official cover". So here's my gift to confused journalists.

A noble undertaking. Johnson cites the same bit of the IIPA we have excerpted above, and then fails to read it! Here we go:

There are two types of people who work at CIA. First are the "overt"
employees. These are folks who can declare on their resume or any
credit application that they are a CIA employee. Their status is not
classified and their relationship with the CIA is openly acknowledged.
Valerie Plame was never an "overt" employee. At no time during her
entire time at the CIA did she identify herself as a CIA employee.
Although she appeared in Who's Who as the wife of Ambassador Wilson
there is no reference whatsoever to her having a job at the CIA. Zippo!

The remaining category of employee is
covert. Covert employees include people who work under "official
cover" and people who work under "non-official cover".

"[T]wo types of people who work at CIA"? Fine, but the two types would have to reflect "classified status" and "non-classified status". As Johnson would note if he read the statute he excerpted, an officer with classified status who has not served abroad in the previous five years is not "covert" under the statute, regardless of whether they are a "NOC", and regardless of whether they have classified status.

I propose my own dichotomy - there are two types of people in the world: those who think Larry Johnson is a partisan hack, and those who think he is a hack.

MORE ON THE IIPA: Folks with access to the Times archives should check the legislative history of the Act for a real laugh. More after the break.

The NY Times has a very helpful feature titled "Diary of the Leak Trial", with timelines and summaries of the key witness testimony.

However... I pointed out some problems with it last week, but I am continuing to take special umbrage at this description of John Hannah's cross-examination by Special Counsel Fitzgerald:

Mr. Hannah conceded that if Mr. Libby took two hours out of his busy
day - as he did to meet with Ms. Miller - it meant Mr. Libby considered
Ms. Wilson a key issue.

"Ms. Wilson" was a "key issue"? The incident in question is Libby's breakfast meeting with Judy Miller on July 8. Jim Rutenberg of the Times gives us seven paragraphs (after the break) on the background to that meeting - secretly and over the objections of George Tenet, Dick Cheney had arranged a secret declassification of the NIE by George Bush. This was so beyond Libby's normal experience that he actually double-checked the legality of this with OVP Counsel David Addington. But nowhere does Mr. Rutenberg mention "the wife". One possible interpretation - leaking the secretly declassified NIE to Judy Miller was what made the meeting important. Just a thought.

Or, if the Times does not believe their own Jim Rutenberg, perhaps they will believe Neil Lewis and Scott Shane - here is their account of that exchange:

Although Mr. Hannah testified for the defense for nearly two hours,
the prosecutor, Mr. Fitzgerald, seemed to cut down much of the
significance of his testimony in five minutes of cross-examination.
Noting that Mr. Hannah had testified that he could usually have a few
minutes alone with Mr. Libby only in the evening after the crush of
business, Mr. Fitzgerald suggested that Mr. Libby would have devoted
time only to matters of great concern to him in the week of July 6,
2003.

''If he gave something an hour or two that week, it would
be something Mr. Libby thought was important, right?'' asked Mr.
Fitzgerald.

''Well, with regard to me, yes,'' Mr. Hannah replied.

Left
unsaid in the exchange was undisputed testimony that Mr. Libby spent
nearly two hours on Tuesday, July 8, with Ms. Miller, then a Times
reporter.

"Left unsaid"? You mean, neither Fitzgerald nor Hannah mentioned the wife? Then my goodness, how do the psychic diarists at the Times justify their summary of his cross-examination?

There is no chance of a correction or amendment - The moving finger writes, and having writ moves on - but go waste his time anyway: Public@nytimes.com

Or, try the news desk directly: nytnews@nytimes.com.

It is a minor point, but we are trying to coax them into baby steps here.

My guess is that NBC News is deeply divided on the Scooter Libby trial. Keith Olbermann, Chris Matthews and David Shuster are undoubtedly rooting for convictions on all five formal charges and maybe a few more - David Shuster is probably right now working on a report describing how the jurors convicted Libby, exchanged high fives, then dropped their own unpaid parking tickets on the defense table as they walked out.

However, the cooler heads at NBC (i.e., everyone else) are probably crossing their fingers and hoping for acquittals all around, most especially on the counts involving Tim Russert. Otherwise, the defense will appeal, Judge Walton's decision to keep Andrea Mitchell out of the trial will be a basis for the appeal, and NBC News will have to "report" on the Tim Russert situation for months to come. This will be especially difficult for David Gregory, erstwhile "newsman", who has been duct-taped by the NBC lawyers and not allowed to comment on whether Ari Fleischer, a key witness against Libby, lacks credibility.

February 20, 2007

TM is still apparently locked out. JOM has been transfixed by what appears to have been a Fitzbreakdown during closing argument. "Who stole the strawberries?" the crowd cries out.(We are a literary crew.)

This morning the defense signalled a belief that the prosecution would attempt to exceed the boundaries of appropriate rebuttal, and from the often garbled summaries we are reading he appears to. Will the defense be able to use these missteps to get further jury instructions and perhaps even a sur-rebuttal? Maybe.

Per fdl this is how the day ended:

"

Walton: Sometimes during course of argument. Lawyers say things they don't mean to say. I want to say a couple of things to make sure. Reference to AG guidelines, those were admitted for a limited purpose, so you could assess whether Fitz' interaction was consistent with those guidelines. Argument that Libby would have been aware of those guidelines. There is no evidence before you [snipping FDL profanity].Walton THe truth of whether someone could be harmed based on disclosure of covert identity should not be dismiseed. What is relevant here is what, if any impact, things had on his state of mind.

Walton Considering the hour, we'll recess at this time. Same time tomorrow. I hope my voice will hold out. I've been fighting a cold, my throat is being challenged. Based upon my calculation, it'll take 1.5 hour, I'll give you half, then give you the other half. With that I would hope that sometime before 11 the case will be submitted to your for your proceedings. Continue to avoid havign contact with anyone associated with, also with media coverage of this case. I trust you will continue, and have not had any contact with media coverage. I assume it hasn't happened. I implore you to continue to avoid media coverage."

February 16, 2007

Since there won't be any courtroom activity today, this really shouldn't be a "pre-game" thread, but since there is bound to be a "post-game" thread this afternoon, here we go.

Here, cboldt links to Libby's revised theory of defense - honest confusion, no motive to lie, government did not prove motive or intent.

And the NY Times offers a banquet - their Diary of the Libby trial summarizes key witnesses and dates. They have a few key omissions (and one erroneous inclusion!) and save the best laugh line for last.

At a glance, in "defense witnesses" they omit Robert Novak calling Libby on July 9th. Novak testified that he may well have asked Libby about Plame but got no helpful response. This matches Libby's description of his chat with Russert one day later, so maybe Libby has simply confused his reporters.

Oh, let's keep quibbling:

Cathie Martin - the Times omits that the defense introduced phone records more or less pinning down the date of her receipt of Plame information from CIA spokesperson Bill Harlow as June 11; she told Libby and Cheney that day or the next. (Note: I happen to think that Libby's note about Plame from about June 12 refers to this info from Ms. Martin; Libby told the grand jury that he believed he heard this from Dick Cheney over the phone, but he also said he didn't remember with any confidence at all, and Fitzgerald never called Cheney. Bet Cheney also forgot? Or did Cheney tell Fitzgerald that he mentioned Plame to Libby and emphasized both her importance and her classified status, but Fitzgerald forgot to call that witness?)

Ari Fleischer:

During a lunch on July 7, 2003, Mr.
Libby told him that Mr. Wilson's wife was sent by his wife to Niger
and that she worked for a bureau of the C.I.A. that dealt with efforts
to curtail the proliferation of weapons.

Mr. Fleischer admitted that he could
not be absolutely certain whether Mr. Libby called Ms. Wilson by name.
His testimony was secured with a grant of immunity from prosecution,
since he had shared Ms. Wilson's identity with John Dickerson, then
working for Time magazine, and NBC's David Gregory around July 11,
2003.

John Dickerson has denied that in print but does the jury know that? Probably not. However, the Times omits (for now) Walter Pincus, who told the defense that he received a Plame leak from Fleischer on July 12; Fleischer specifically told the defense he had not leaked to Pincus. (But wait! The Times has chosen to present the witnesses as they prosecution and defense called them, so the diligent reader who makes it down to the defense witnesses and "Walter Pincus" sees the Ari rebuttal. Logical, but it means that the entire piece must be read, not just picked at. That will create confusion in some quarters, starting here.)

Matt Cooper gets off easy - the Times notes that the defense introduced the idea that Dickerson told him, but omits Cooper's confusion about his notes, his bias ("War on Wilson?") and the absence of any contemporaneous emails supporting his Libby "memory" despite its alleged importance. (I welcome a helpful link on this subject).

Tim Russert: The Times actually smites Russert (Print vs. Television - The Final Showdown!) but omits key evidence and has problems with their summary:

Mr. Russert could not remember
the exact details of his telephone exchange with Mr. Libby, like the
time of day. A defense lawyer read an F.B.I. report where Mr. Russert
said that he could not rule out discussing Ms. Wilson with Mr. Libby,
but had no recollection of it. Mr. Russert said he did not believe he
said that.

Andrea Mitchell of NBC said on Oct. 2003 that the
identity of Ms. Wilson was "widely known among those of us who cover
the intelligence community." She later said that she had been wrong to
say that. The defense suggested that if Ms. Mitchell had long known of
Ms. Wilson, then Mr. Russert, then her boss, must have long known it
too.

The defense certainly said that about Ms. Mitchell and I am delighted that the Times chose to publicize it (Finally!), but the jury was not allowed to hear it - Ms. Mitchell has subsequently denied that (never under oath...) and the judge felt like the jury might be asked to speculate as to her credibility. Ya think?

The Times omits Russert's misleading affidavit to the judge when he opposed his grand jury subpoena; it also omits his apparent collusion with Fitzgerald to keep his earlier cooperation with the FBI out of the public record. (Sorry for the no-links, but I am racing through this while my ISP is still smiling on me. However, I have not lacked for Russert and Mitchell coverage in the last few weeks, so feel free to look around).

Robert Novak - again the Times fails to note his phone call to Libby on July 9. The defense may introduce the "honest error, wrong reporter" defense to explain Russert, so Times readers will be at sea.

John Hannah - a howler from the Times:

Mr. Hannah conceded that if Mr. Libby took two hours out of his busy
day - as he did to meet with Ms. Miller - it meant Mr. Libby considered
Ms. Wilson a key issue.

Oh, please - Hannah conceded that Libby considered his meeting with Judy Miller to be important; since Libby had obtained the Double Secret National Intelligence Estimate Declassification from Bush and Cheney (and checked the legitimacy of this with OVP Counsel Addington), you can darn well bet he considered this meeting to be important.

But the wife? Let's check the not-a-transcript ("TYOI" is John Hannah; the fdl liveblogger had a special and unrestrained need to editorialize freely that day, sorry):

F Best time to see Libby was evening, particularly if you focus July
6. Fair to say during that week, if you said tomorrow morning take an
hour or two to go out for coffee, he wouldn't take that time.

TYOI It would be harder.

F If he gave someone an hour or two, it was something Libby thought important.

TYOI WRT me, yes.

[You think Fitz woke up the jury?]

I don't know if he woke up the jury but he didn't wake up the Times - in their reverie, every discussion of the Wilson trip, Niger, or uranium comes back to the wife. However, the wife was not mentioned in the question or answer and the NIE leak was obviously important to Libby - sorry, Times.

HELP: And my quick search of the Times archives on "Mitchell Russert" certainly suggests that they did not note the Mitchell issue during their trial coverage. Is that accurate? If someone could check their story for the day Russert testified and the follow-up, that would be great.

February 14, 2007

Neil Lewis and Scott Shane of the NY Times continue to cover the Alternate Reality version of the Libby trial. Here is their carefully crafted, deeply researched summary of the current state of play:

Although the jury will not hear Mr. Libby in person, during the
trial, prosecutors played eight hours of audiotapes in which Mr.
Fitzgerald questioned him before the grand jury. The jury heard Mr.
Libby giving his version calmly in the first two-thirds of the tapes
and then seeming to become uneasy and less confident as Mr. Fitzgerald
bore in.

Prosecutors have said Mr. Libby learned of the identity of Mr. Wilson’s wife, Valerie Wilson,
from fellow administration officials in the summer of 2003 and
discussed her with reporters. Mr. Libby swore that he had not discussed
Ms. Wilson with reporters and believed that he had learned about her in
a conversation on July 10 or 11 with Tim Russert of NBC News.

Judith
Miller, formerly of The New York Times, and Matthew Cooper, formerly of
Time magazine, testified for the prosecution that Mr. Libby had
discussed Ms. Wilson with them. Mr. Russert testified that he never
discussed Ms. Wilson with Mr. Libby.

Groan. Libby testified to the grand jury (and as re-heard by the trial jury) that he learned about Plame from Russert on July 10 or 11, then leaked it back to Cooper and Miller as reporter gossip.

Ms. Miller's tale that she and Libby discussed Plame on July 8 undercuts this; Cooper's contribution is to deny that Libby sourced this as reporter gossip.

The little-publicized joint program between JustOneMinute and the NSA bears fruit - this *may* be the tape the defense hopes to introduce to impeach Tim Russert's claim, on the witness stand last week, that he had no idea that a typical grand jury appearance was made without an attorney present. Tim Russert is with Larry King in 1998, discussing developments in the Monica debacle:

RUSSERT: It's been suggested by no less than the former governor of
New York the other night, that now that the president has decided that
he's going to testify before the grand jury, why do it in the Oval
Office and why insist that his lawyer be there.?

Go into the grand jury without a lawyer, like every other American
citizen, go ahead, ask me any question you want and I'll give you an
honest answer.

I do love this guy - compare that with his own situation, where his lawyers negotiated a deal with Fitzgerald so that Russert could give a deposition at the NBC office with his attorneys present (see BACKGROUND, below).

And on my current theme - would Russert mislead investigators a bit so that they did not grill him as to whether he had a live source in the Plame case - Russert said this in 1998:

KING: And do you stand by your guy if he is subsequently charged with something and they subpoena you?

RUSSERT: I would have to go to prison to protect his name.

Well - if you would go to prison to protect a source, would you mislead investigators a bit to make sure they don't get the idea that you have a source? That has to beat sitting in jail.

As to whether the defense ought to haul Russert back to make this point about the grand jury - it is not major, but they may decide the jury ought to see a specific example of either Russert telling a minor lie on the stand, or having a terrible memory problem. I say go for it, but I am hardly Russert's biggest fan just now.

BACKGROUND: Here is Swopa's not-a-transcript of Wells asking Russert about his accomodation with Fitzgerald:

W: (displays letter dated July 27, 2004) Have you ever seen this letter?

T: Don't believe so, could I read it?

W: (reads it) "This will confirm the understandings pursuant to
which we intend to resolve the subpoena issued to your client, Tim
Russert…" (etc.) You understand that an arrangement had been worked
out where you would not have to appear before the grand jury?

T: I had not seen this letter. I knew I would be under oath.

W: Grand jury would not be able to assess your demeanor, ask you questions

T: Correct

...

W: (reads more of letter, saying testimony would be with lawyers in
room) You know that in a grand jury, lawyers are not in the room?

Walter Pincus testified in the Libby trial that he received a leak about Valerie Plame from Ari Fleischer. That came as a bit of a surprise following this testimony from Mr. Fleischer (via Byron York):

"Did you tell Walter Pincus, during that conversation on July
12th, that Wilson’s wife worked at the CIA?" asked defense attorney
William Jeffress.

"No sir, I have no recollection of telling that — " Fleischer answered.

"No recollection of telling him that at all? You would remember if it happened?"

"Sure I would. I do not," Fleischer said.

Compounding the puzzle is this story of how Walter Pincus came to testify:

Fitzgerald wanted to find out the identity of my source [for this Oct 12, 2003 article describing a July 12, 2003 leak].

I refused. My
position was that until my source came forward publicly or to the
prosecutor, I would not discuss the matter. It turned out that my
source, whom I still cannot identify publicly, had in fact disclosed to
the prosecutor that he was my source, and he talked to the prosecutor
about our conversation. (In writing this story, I am using the
masculine pronoun simply for convenience). My attorney discussed the
matter with his attorney, and we confirmed that he had no problem with
my testifying about our conversation.

My guess is that there was a bit of a misunderstanding - the source agreed that he had spoken to Pincus on July 12, but had taken the position that Ms. Plame was not discussed. Obviously, Pincus said something different.

However - Ari Fleischer also testified that he had leaked information about Plame to reporters David Gregory and John Dickerson (who disputes Fleischer's version). Yet Special Counsel Fitzgerald never attempted to compel their testimony. Why not?

If one day Mr. Fitzgerald is subject to proper supervison perhaps that question will be answered. For now, I have two guesses:

By the time he had testimony from Pincus in 2004 Fitzgerald was conducting a perjury investigation, not a leak investigation. Ari Fleischer looked like a useful witness against Libby - this is from the indictment:

16. On or about July 7, 2003, LIBBY had lunch with the then White House
Press Secretary and advised the Press Secretary that Wilson's wife
worked at the CIA and noted that such information was not widely known.

However - if Fitzgerald got the testimony of Dickerson and Gregory and it contradicted Fleischer, that would undercut an important witness against Libby. So the guiding rule of the investigation became "Don't ask, don't tell" - preserving Fleischer's credibility as a witness against Libby became more important than determining whether Fleischer was in fact credible. Pincus was one strike, and Fitzgerald concealed that during the prosecution presentation, but two more might have represented a breach of ethics.

Another reason for Fitzgerald to have steered away from Dickerson and Gregory was that they were colleagues of Matt Cooper and Tim Russert respectively. Confirming that Gregory had received a leak from Fleischer might have undermined the impact of another important prosecution witness, Tim Russert, when he said it was impossible for him to have mentioned Plame to Libby.

Based on today's liveblogging the defense is going to try to work these insinuations into their closing argument. However, the judge has noted that the defense was entitled to do the investigator's job and call Gregory themselves. The defense prudently passed, since doubt is all they are looking for.

So what about Fleischer's memory? I have a hard time believing Pincus is wrong about his leak.

But think about the week Fleischer was having. It was his last week on the job. On July 7 he had the brutal press gaggle where he threw in the towel on the "16 Words", followed by his fateful lunch with Libby. He left for Africa that night on a multiple day, multiple country Presidential tour - does it sound hectic? Could he have gotten confused about a few key points? Apparently he did.

So should we entertain reasonable doubt about his recollections of his lunch with Libby? I assume that the jury will.

MORE MEMORY FAILURES: Murray Waas, who covered this story closely, misses everything here:

Libby trial: Finally... Walter Pincus discloses who his source was who
told him that Wilson's wife, Valerie Plame, has allegedly sent him on
his mission to Niger, and also suggested that he was sent because of
nepotism: Ari Fleischer.

That explains more why Fleischer only
agreed to testify with a grant of prosecutorial immunity, both before
the federal grand jury and trial. It is surprising that this
information did not come up during Fleischer's own lengthy testimony.

It's
interesting as to why neither the defense or prosecution brought this
out when Fleischer testified. It would seem to help the prosecution's
case, one would presume, because Fleischer learned the information from
Libby, thus seeming to corroborate Fleischer's testimony that he
learned about Plame from Libby.

Wow. In the trial I am watching, Fleischer was asked about his Pincus connection during the defense cross examination, as cited above. Presumably he wanted immunity for the Gregory/Dickerson alleged leaks, since he forgot the Pincus leak.

Fleischer also explained that he overheard Dan Bartlett expostulating about the INR memo and its mention of Ms. Wilson's role in arranging her husband's trip while on the African trip, so the idea that Fleischer learned about the wife only from Libby is absurd.

February 13, 2007

Neil Lewis and Scott Shane give us a laugh with their Libby trial daydreaming:

A surprise revelation came when Mr. Pincus, who writes about national
security and intelligence [for the Washington Post], disclosed that he was first told on July 12,
2003, about Ms. Wilson by Ari Fleischer, then the White House spokesman, and not Mr. Libby.

Surprise to whom? Did these two intrepid reporters really think that Walter Pincus had received a Plame leak from Libby?

A significant hint that Libby had not leaked to Pincus might have been the fact that the prosecution did not call him as a witness - could Pincus really have been worse than Matt Cooper and Judy Miller?

Or a check of the Times archives might have turned up this attempt to pry into the Pincus puzzle:

Mr. Pincus has not identified his source to the public. But a review of
Mr. Pincus's own accounts and those of other people with detailed
knowledge of the case strongly suggest that his source was neither Karl
Rove, Mr. Bush's top political adviser, nor I. Lewis Libby, the chief
of staff to Vice President Dick Cheney, and was in fact a third
administration official whose identity has not yet been publicly
disclosed.

Or, in a moment of immodesty, let me suggest another idea - here is a Google search on the JustOneMinute archives, with search words "Libby Pincus source".

Just looking at the Google result and reading the excerpts, I see little hints, such as this, from the first line of the first hit:

Pincus also has said his source was not Libby.

Or from the third hit:

MORE: The Walter Pincus story is interesting - here, he tells us that Lewis Libby was not his source, but that his source had identified himself to...

Follow the links, look around, and you will find articles such as this, where Pincus specifically states that his source was not Libby.

At approximately 7:45 Am (Eastern) Don Imus talked to Frank Rich on his MSNBC Show today and picked up on the Libby trial where he left off yesterday, saying that thinks Tim Russert knew about Valerie Plame (or Wilson's wife) prior to the publication of the Novak column.

Imus's launching pad was that Andrea Mitchell's answers were comically evasive and unconvincing in November 2005 when she recanted her October 2003 statement that it was "widely known" amongst reporters following the Wilson/Niger story that Wilson wife was with the CIA. (More on Mitchell here.) [And more - did you know that Colin Powell was a guest at Andrea's wedding to Alan Greenspan? Dum de dum, why might she want to protect Powell or his good buddy Armitage, help me here... Hey, if she gives up Powell we can call Andrea "The Wedding Singer"].

He added that when he talks to David Gregory about the Plame situation Gregory seems very tense.

Imus could not imagine a motive for Russert to lie, however, and went on to say that in a credibility contest between Russert and Libby, he would choose Russert.

Well - as to Russert's motive, this post has more detail, but the summary is this - Russert started with a little white lie to the FBI in November 2003, with the objective of concealing the fact that he (or Andrea Mitchell) had a source for the Plame leak. Russert did not "lie" to the investigators; he misled them with carefully phrased testimony so as to avoid subpoenas, jail time, and the disclosure of NBC News sources.

And it seemed like a little white lie at the time - Russert knew that Libby had not leaked to him, so he reasoned that his chat with Libby was not the sort of primary leak (government official *to* reporter) that investigators were seeking.

Russert maintained this charade with his deposition to the grand jury in June 2004, then blanched when he finally saw the indictment in October 2005 - the investigation had morphed from a search for leakers into a search for perjury and Russert had become a star witness.

The most trusted man in news did not think he could keep his job if he came forward and admitted that he had misled the Fitzgerald investigation for nearly two years, so he kept quiet and awaited developments.

And one of the developments was that subsequent court filings made it clear that no emails or notes existed at either the White House or at NBC to contradict his story.

So at the trial last week, when faced between (a) admitting that he had misled investigators for three years, probably losing his job and certainly foreclosing any future stories about Big Russ and the Catholic nuns who taught him in school, or (b) continuing the cover-up, Russert took the final plunge and lied.

That, at least, is my guess as to one hypothesis the defense will put forward in order to introduce reasonable doubt as to Russert's veracity. Folks who think Libby lied to keep his low-paying government job and avoid embarrassment will surely be sympathetic to this alternative scenario where Russert had five million reasons a year to lie (Or more! Or less - objection!).

As to whether it is true, how could I possibly know? But the fact that Don Imus thinks something is fishy at NBC News is quite revealing - he does talk to these reporters frequently and prides himself on having a functional BS detector.

BLEG: I wager we will see a transcript of that segment eventually, but sooner is better. Maybe the MSNBC website has an audio (Let me check...). I am not seeing it at the WFAN website in NY, not yet anyway (9:52 Eastern). And the ImusBlog may deliver for us. Here we go:

New York Times columnist Frank Rich called in this morning. He gave us his take on the Libby trial. Starting with agreeing with almost everyone that Russert is telling the truth about his conversation with Scooter Libby.

Mr. Imus thinks Russert is telling the truth about the conversation but is lying about knowing Valerie Plame worked for the CIA. Two minutes later Imus changed his mind and said Russert was not lying. Imus implied throughout the conversation with Rich that Andrea Mitchell and David Gregory were lying.

OK. I would have said that "changed his mind" referred to believing Russert over Libby on their specific conversation, but that is part of the joy of radio - where is a darn transcript?

WHO CARES, BUT: Frank Rich knows little about this trial bit he is a useful barometer for the conventional wisdom of the Bush-bashing left. And he opined that the Plame outing was an accident and an over-reaction, not any sort of a plan to specifically expose her. The Admin wanted to smear Wilson as a house-husband who needed his wife to get him a gig; in Rich's words, "they used a hammer to hit a flea".

Neil Lewis of the Times has taken to burying the most interesting tidbits of the Libby trial in his last paragraph. Here we go, from the first day of the defense when we heard from many reporters including Bob Woodward and Bob Novak:

Mr. Novak suggested how a columnist’s politics could affect access. He
said he spoke with Mr. Rove two or three times a week. But it took him
two years to get an interview with Mr. Armitage, who was seen as not in
tune with Mr. Novak’s generally conservative views.

And in that interview Mr. Novak was working on a story about Joe Wilson, among other things. Deputy Secretary of State Armitage, although not a confidant of Novak's, passed along the news that Ms. Wilson was behind Joe Wilson's trip to Niger.

Check this tape or transcript of the Woodward-Armitage discussion of Ms. Plame - since Armitage mentions three times that she is a WMD analyst at the CIA, one might almost think he wanted to emphasize that point to Woodward.

February 12, 2007

Into every bully boy's world a tougher opponent will appear. Today the prosecution gets to meet the defense, and the defense has landed some blows designed as much to undercut the challenger's confidence as to get into the record what they need.

(And it looks like the referee finally noticed a whole lot of things about this match he'd overlooked or missed before. Not the jury, though, they seem to get this very well.)

I am still having problems online and Kim Pearson, fellow MBA blogger is letting me use her computer on the break.I leave it to others to give you the stenography. What we are watching today is the defense knocking the starch out of "Elliott Ness with a law degree" by highlighting a series of blunders the prosecution made. (I'm sure some want to know if Fitz is sweating as he was at the presser. Can't tell from the feed, but he does seem to be wearing that washable seersucker suit again.)

.Two of the biggest blunders to date were failing to put anything on to support the July 12 count on Miller.With that out, obstruction is only available on the Cooper count(are you kidding?) and the Russert count.Fitz seemed shook as he made what I thought was a very weak argument that the jury could infer the July 12 stuff from the other conversations. .(I will detail this further tonight when I get home but he never charged Libby with perjury re Miller, only with obstruction and if that's out, it would only seem logical to tell the jury to disregard all that.)

A potentially bigger issue is the offhand remarks the judge made earlier that Libby couldn't put in the memory defense if he didn't testify..Most particualry the CIPA stuff. There was heated argument on it and at 4:30 it will continue. Basically, in stipulating to relevant facts (including that Libby was focused on all that stuff in the CIPA materials) the govt never reserved that the stipulation applied only if Libby testified.

The defense is arguing an agreement was made, not based on Libby's testimony, and they have based their opening statement and case on that agreement.

We will hear more about this. I predict that while the stipulation might be whittled down a bit--the judge thinking the govt might have misunderstood (ie. been taken to the cleaners by shrewder counsel), most of this stuff will find it's way into the record even if Libby does not testify.WHAT IS CRITICAL AT THIS POINT IS THAT THE JUDGE HAS BACKED WAY OFF of earlier comments suggesting Libby can't use CIPA stuff etc if he doesn't testify. He can, if he lays the proper foundation.

The more subtle point is the defense counsel has outmaneuvered the prosecution at several key points and the prosecution knows it and is off its edge in my opinion.

(I lent Jim Engle last night's pleading and we discussed this. We seem to be in agreement on this point-- The defense is both fighting for its points on the evidence AND Smacking the SP around a little.)

I thought Woodward was an impressive witness, helpful to Libby and that the jury is paying attention--asking him if anyone else knew--to which he said he'd told Pincus..

The morning started with argument on two issues:(a) Mitchell's testimony was the first.

Wells argued that his would love to have her statements on Oct 3 and on the various Imus shows taken as substantive evidence, but acknowledges that the judge is resistent to that. Nevertheless, he says he shouldl be allowed to introduce that evidence to impeach her and (Russert) with limiting instructions to the jury that this is not to be considered substantive evidence.He pointed out the close way Russert/Gregory and Mitchell worked on this story ;indicated that on July 8 M contacted Harlow, Fleischer reportedly told Gregory (per the govt's own case). The judge had missed that Harlow had confirmed Plame to Novak. In fact, he seemed not to know many of the facts.He has taken a break to consider this.

*Ruling--Will allow Wells to question Mitchell on these things outside presence of jury to see whether he can do what he wishes to w/o running afoul of the Johnson case. Also Wells announces Eckenrode has been called as a defense witness to clarify what Russert actually said as the notes as missing.***

(b) The other issue is the dropped count..Fiz is palaying his usual smoke and mirrors game arguing the instructions should not strike that language. Wells is fairly livid--He says that the obstruction count is based solely on 3 conversations (with Cooper, with Russert and with Miller but only with her on July 12)That the judge made this clear in opening instructions--required Libby to waive at opening to deal with this, that Wells , following the agreement, made this his very opening..and that now that the July 12 conversation with Miller is dropped, Fitz should not be allowed to leave in that stuff in the jury instructions onm some smoke and mirrors thing that the jury can ifer it from conversations elsewhere.(Translation--I think sloppy drafting of the indcitment has come to bite the prosecution. The defendant has a right to know what he is charged with, and I think the judge will rule for Libby on this one, substantially weakening the obstruction counts.

February 11, 2007

The anonymous author who uses the pen name Fedora has done a masterful job of summing up the Plame case. Everything you wanted to know is found here. His conclusion:

Since Fitzgerald’s investigation began, numerous reporters have quoted anonymous sources describing grand jury testimony. In some cases these leaks seem to come from the defense, but in other cases sources have implied inside knowledge of Fitzgerald’s team. For instance, in a July 15 Washington Post article, Mike Allen quoted sources who had “reviewed” grand jury testimony: Sources who have reviewed some of the testimony before the grand jury say there is significant evidence that reporters were in some cases alerting officials about Plame's identity and relationship to Wilson--not the other way around.

Tim Russert's testimony in the Libby trial has revealed some interesting fault lines among the commentariat: people who have no trouble believing that Libby lied to avoid embarrassment and save his job can't imagine that Tim Russert may have provided misleading evidence to the FBI and grand jury and lied to the trial jury in order to avoid embarrassment and save his job. [Slate/Seth Stevenson link]

Let me help. First, keep in mind that Russert v. Libby is not an either/or proposition - both of their stories may include a mixture of truth and lies.

However, Libby may be telling the truth about the Russert conversation while lying about other things. Consequently, Libby may be convicted of perjury or obstruction even if Russert's testimony collapses. (I mention this to resolve the odd dispute between Byron York and Arianna Huffington [link].)

So, to help those who cannot imagine that the most trusted man in news could be deceiving them now, let me paint a scenario in which Tim Russert makes some seemingly reasonable decisions which take him down a twisted path to his current predicament. This is strictly hypothetical; I certainly can not prove this to be true, nor do I allege that it is. However, I do predict that the defense will attempt to insinuate something like this in their closing argument.

An overview of this hypothetical vision of Russert's descent into dishonor:

1. Andrea Mitchell, Russert's subordinate and colleague at NBC News, gets a leak from one source suggesting that Wilson's wife was involved in sending him on his Niger trip. She shares this information with Tim Russert.

2. Tim Russert equivocates when the FBI asks him about Plame leaks in Nov 2003; he says he does not "know" that "Valerie Plame" was a "CIA operative" involved with her husband's trip, so he could not have asked that of Libby, but does not directly address whether he told Libby that a rumor was circulating that Wilson's wife was with the CIA and had a role in his trip. Russert rationalizes his little white lie by convincing himself that, since the investigators were looking for government officials who had leaked to reporters, his chat with Libby was a bit of a false trail.

3. When asked to give a deposition to the grand jury in June 2004, the stakes are clearly higher, but Tim Russert doubles down on his bet - he still wants to avoid a subpoena for himself or Ms. Mitchell, and he still thinks the government is looking for primary leakers; he does not realize that Fitzgerald is now conducting an investigation into Libby's perjury. And please don't tell me that Tim Russert would not mislead the investigators when he clearly filed an affidavit misleading the court.

4. When the indictment is announced in October 2005, Tim Russert faces a moment of crisis and conscience, since it is clear that he will be a star witness against Libby. Should the most trusted man in news signal that he has deliberately misled investigators for almost two years? That might mean subpoenas from the Special Counsel and a change in his job status; it certainly means that he won't be telling any more stories about the high principles espoused by Big Russ and the Catholic school nuns.

Or should he ride it out and see what the morrow brings? He can see from the indictment that Libby didn't present notes or emails supporting his side of the story, so Russert chooses silence over disgrace.

5. Libby goes to trial and Tim Russert is called to testify. He goes all in and completes his descent into dishonor by fully and firmly testifying to the story he had originally fudged a bit. The alternative, admitting that he had misled the investigators and the public while letting Libby twist in the wind, was just too ghastly.

And here we sit. Next week we may see whether Andrea Mitchell is willing to cover for him (more on that soon, but she has plenty of motive to have forgotten having an early Plame leak.)

DEVELOPING...

When time permits, I plan to come back with Andrea's predicament, and point out the seemingly obvious - although Libby's overall story may be a fabrication, this particular detail - Russert told me about Plame - was not a detail Libby needed to invent in order to paint a useful deception.

Libby's story was that Russert reminded him on July 10; he then talked to Rove, who told him that Novak had the story of Wilson's wife armed with these two reminders, Libby then leaked to Miller and Cooper, sourcing it as reporter gossip.

That "reporter gossip" story works just as well if Libby simply sources it to Novak; the Russert detail added nothing to the legal fog bank he was allegedly trying to create.

Or, if Libby simply picked a reporter's name out of a hat, why pick Russert, with whom he had no relationship? Judy Miller had extensive contacts among the neocons who might want to debunk Wilson and was a likely leak recipient - why not insist that she leaked Plame to him on July 8? Why not say Novak told him directly, or that he heard it from David Sanger of the Times?

Instead, by odd luck Libby chooses at random a reporter with two colleagues, Gregory and Mitchell, who might have had the Plame leak. Too bad he wasn't such a lucky guesser with Iraq.

And do keep in mind - I can't even imagine proving this, nor do I have any particular reason to believe it is "true"; I am predicting that the defense will raise it in order to create reasonable doubt about Russert's veracity and accuracy.

February 10, 2007

The prosecution has rested in the Libby Trial, and like a fish left out in warm weather, a strange and unpleasant odor is becoming more and more apparent as the sun shines on case. NBC News, which has recently taken a turn to the left, plays a particularly prominent role in the prosecution's case. Yet Special Counsel Patrick Fitzgerald is fighting hard to make sure reporter Andrea Mitchell's testimony is not heard, and is asking the jury to buy some highly implausible notions about a key FBI interview with NBC's Washington Bureau Chief Tim Russert.

Gagging Mitchell

The prosecution is still trying hard to keep Andrea Mitchell from being called as a defense witness. In a pleading Friday, the defense is trying just as hard to get court permission to call her. The prosecution argues that the defense cannot call a witness just to impeach her, and the defense says that is not their only reason to call her, that she has other evidence to provide, and that a fair trial cannot be had without her being called and questioned by the defense.

In the period leading up to the disclosure of her status in the Novak case, Mitchell published a series of leaks (clearly from Department of State sources and just as clearly part of the CIA-State Department interagency war) aimed at the CIA's intelligence gathering. Among the interesting points in her stories:

- On July 14, 2003, just as Novak's article hit the newsstands, Mitchell made clear she was having a spat with Armitage (the first to leak), indicating the he wasn't returning her phone calls any longer and that he had chosen an appearance on Fox instead of NBC.

- On October 3, 2003, the very day that Armitage made his secret admission to the FBI that he was Novak's source, Andrea Mitchell publicly said that everyone knew about Plame, something she twice has tried unpersuasively to minimize once NBC became involved in this case and the knowledge of her boss, Tim Russert, became an issue.

(You would be hard pressed to find many regular Plame obsessives at Just One Minute who do not believe that Armitage leaked some details of the story to Mitchell as he did with Woodward and Novak.)

The prosecution has offered up a representation by NBC counsel in effect saying that Mitchell has no evidence to offer the Court-that she did not know Plame's identity before July 14, 2003 and never conveyed that information to Russert.

Aside from the fact that it seems ridiculous to regard this offer as the equivalent of the opportunity to confront Mitchell in court, we must remember that this representation is being made by NBC counsel, which had previously submitted a misleading and false affidavit from Russert, hiding his cooperation with the FBI, to Judge Hogan's court when the issue of reporter privilege came up. The same prosecutor now proclaiming Mitchell has nothing to add knew the Russert affidavit was false and did nothing to correct the record in that case.

I do not see how the trial court can deny the defense motion to call Andrea Mitchell as its witness.

The Eckenrode telephone interview

But the really eyebrow-raising aspect of NBC's and Russert's behavior seems to have whizzed right past the heads of most media observers: At the heart of the Russert testimony is an implausible scenario which suggests improprieties in obtaining his testimony and which raise questions about its veracity

Prior to Russert's appearance, the defense had sought all evidence relating to the accommodations the prosecution had made to obtain Russert's testimony. In the "Government's Memorandum in Opposition to Defendant's Request for Disclosure of Information Related to Accommodations Provided to Media Witness Tim Russert," Fitzgerald responded

"[FBI] notes taken during this interview [with Russert] have not been located, despite a diligent search."

This was a tiny detail many overlooked.

On the stand, Russert told a story so intrinsically implausible I had to review it twice before writing about it.

According to him, he was home on a Sunday when a man called and said that he was FBI agent Eckenrode, that he'd met Russert earlier when his church group had toured the NBC Washington headquarters. The man who identified himself as the agent then related to Russert what Libby had told the FBI about a conversation the two men had had on July 10 or 11 of that year. Russert said he gave his recollection of the statements to the man who'd identified himself as Eckenrode.

Defense counsel read to Russert Eckenrode's later written summary of the conversation - which suggested that Russert has been far less positive that he hadn't told Libby anything related to Wilson's wife. Russert claimed on the stand that he didn't recall the conversation as the summary described it. But, as the original notes by Eckenrode which contain more necessary detail "have not been located, despite a diligent search" not much more could be done to refresh Russert's recollection of that conversation.

Make no mistake: this Eckenrode conversation is at the very heart of the prosecution's Rube Goldberg case. For it is Libby's statement that he'd forgotten that Wilson's wife worked in counter proliferation and that something Russert said (in that conversation he initiated to complain of NBC's coverage of the Wilson flap) reminded him of it, which constitutes the basis of the perjury charge.

How likely is it that these Eckenrode notes (there is some indication that there were 2 conversations, not 1 between Eckenrode and Russert, but Russert recalls only one) of the Russert exchange(s) just vanished? Not very likely I think.

Anyone working in a disciplined law enforcement agency on a major case like this one surely keeps the original copies of such materials in a trial evidence file. Anyone working on a case like this makes numerous working copies of the evidence and never touches the originals until time to prepare for trial. We are thus to believe that someone took or misplaced the original and no copies exist.

I think it is naive to assume that Eckenrode was alone when he made the call to Russert. The Russert interview would have been equally important as the Libby interviews, and would have been tightly scripted--what to say, what to ask, what to avoid, etc., would all have been scripted during extensive discussions between agents and attorneys. I mean, do you really think Fitz whoever was supervising the investigation in the fall of 2003 told Eckenrode, hey Jack, sometime between now and when we close up shop give Russert a buzz and see whether he wants to talk about whatever? Eckenrode assuredly is not the only one who knows what Russert said because, even if the other person(s) present didn't catch everything that was said, there would have been lengthy rehashes immediately after the call terminated and probably contemporaneous note taking while he spoke. For example, Eckenrode could repeat what Russert said (OK, so what you said was...) and some other person(s) is/are scribbling away. But only Eckenrode's official notes would be preserved for the record--well, for a while, anyway.

But there are even more strains on our credulity.

Are we to believe that Tim Russert's home phone number is publicly available? I don't think it's likely he's in the White pages.

Are we to believe that he would take a call from one of the many tourists to the NBC offices and relate such information to someone who merely identified himself over the phone as an FBI agent? (Remember this information was the subject of Russert's affidavit detailing to the Hogan court why he would never give this information up to an investigation.)

An alternative hypothesis

I think this call was prearranged by the FBI and NBC. I do not believe the trial testimony.

Are we to believe that an FBI agent on his own called a public figure like Russert at home? I don't believe this trial testimony. I think Eckenrode cleared this with higher ups at the FBI who arranged this call. Keep in mind that this is Special Agent-In-Charge John C Eckenrode who played such a pivotal role in the development of this high proifile case.

FBI agent Bond acknowledged that her notes of the Libby interviews are inaccurate and that the summaryof the second interview prepared by her supervisor Eckenrode is substantially at odds with her notes.

She also saidthat while Libby said he "couldn't recall" a key conversation, for example, Eckenrode reported that Libby "adamantly denied "it occurred.

Eckenrode appeared prominently at the Fitzgerald press conference announcing the indictment where Fizgerald praised him effusively for his outstanding work in developing this case.

According to Truth Out, a far left online publication which purported to have a great deal of inside information about the case (much of it laughably wrong):

Details about the latest stage of the investigation began to take shape a few weeks ago when the lead FBI investigator on the leak case, John C. Eckenrode, retired from the agency and indicated to several colleagues that the investigation is about to wrap up with indictments handed up by the grand jury against Rove or Hadley or both officials, the sources said.

The Philadelphia-based Eckenrode is finished with his work on the case; however, he is expected to testify as a witness for the prosecution next year against I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff who was indicted in October on five counts of perjury, obstruction of justice, and lying to investigators regarding his role in the leak.

Eckenrode's retirement after the indictment but before the trial does not seem plausible either. This was the biggest case of his life. His bio indicates he was not subject to a mandatory retirement because of time in the service, and even if that were the case, given all the circumstances the FBI would surely have extended his employment as it normally does in such situations. He led the investigation (and there is some who believe that he persuaded Ashcroft to recuse himself from overseeing it and to turn it over to his Deputy Comey who appointed Fitzgerald).

And then after playing such a key role in a major case garnering a huge amount of media coverage he just vanishes? Color me very skeptical.

So the notes of the implausible Russert-Eckenrode conversation (or conversations) are missing; there are no copies; the summary of that exchange reflects that Russert did admit he may have told Libby something about Plame; the investigator who led the case through the indictment and took the missing notes is also gone.

February 09, 2007

In an apparently ongoing effort to lead horses to water, let me point out a recent example of a popular misconception from the Plame case, to wit, that her outing damaged national security. This is from "Scarecrow" at firedoglake:

I am certain of one thing: we already know that Dick Cheney and his
WH helpers are responsible for a serious breach of national security,
and it is only a matter of time before the media begins to couple
reporting of the "smoking guns" revealed in the Libby trial with the
obvious and damning evidence that has been staring them in the face the
whole time.

...It is also seems virtually certain that her public outing disrupted and
adversely affected her Counter-Proliferation Division's classified and
highly sensitive efforts to acquire critical intelligence on the status
of WMD development in Iraq and Iran. It is hard to imagine any
intelligence issues more sensitive and vital to US security. Whether
through carelessness, recklessness or design, that intelligence
capability was harmed, not only by Plame’s outing but perhaps more so
by the intimidating message her outing sent to every other person
working in the US intelligence community.

"It also seems virtually certain"? Scarecrow, you're scaring me, but I bet you wouldn't say these things if you only had... well, Google, or Lexis. What is more than virtually certain is that no links have been provided to support this "virtually certain" claim.

I am familiar with the Raw Story and David Shuster accounts of Ms.Plame's single-handed efforts to hold back the mullahs in Iran - dare we enquire whether the scarecrow, or any of his/her flock, would care to offer something, well, credible? David Shuster, as folks who have been following this trial are aware, day dreams out loud.

Well - just as I did a few weeks back, let me see your David Shuster and raise you a Dana Priest. This is from an on-line chat following that Shuster "scoop":

Q:... From what you hear, was Ms. Plame working on Iran, how important was
she to the tracking efforts, and how much has her "outing" really set
us back?

Dana Priest: It was reported before that she
worked on proliferation issues for the CIA. The leap in this new round
of information is that her outing significantly impacted our current
intel on Iran. I don't buy it. First, no one person who quit
clandestine work four years ago is going to make that big of a dent in
current knowledge. But also, nothing like this came up at the time of
her outing and I believe it would have. Think we need some actual
details. At present it just doesn't smell right.

It doesn't smell right? Oh, I think it smells exactly like Shuster on your shoes.

I love the smell of dropped felony charges in the morning. It smells like victory... of a sort.

Neil Lewis of the Times reports, sort of, on the latest in the Libby trial:

The Libby defense won a victory of sorts when Judge Reggie B. Walton
agreed to exclude part of one of the five felony counts against Mr.
Libby. But it remained unclear whether the change, which was not
contested by the prosecutors, would matter in jury deliberations.

Which charge? Not clear from this, but our panel of experts is bettingon 33 (c), related to Judy Miller. From the indictment:

33. It was further part of the corrupt endeavor that at the
time defendant LIBBY made each of the above-described materially false
and intentionally misleading statements and representations to the
grand jury, LIBBY was aware that they were false, in that:

...

c.
LIBBY did not advise Judith Miller, on or about July 12, 2003, that
LIBBY had heard other reporters were saying that Wilson's wife worked
for the CIA, nor did LIBBY advise her that LIBBY did not know whether
this assertion was true;

NOTE: I have changed "count" to "charge" a couple of times since there are still five counts. I am not sure "charge" is right either, but it is clear that something was dropped.

FWIW, Neil Lewis is tough on Russert:

[The jurors] seemed to pay close attention as Mr. Wells, known for his
cross-examination skills, and Mr. Russert, a successful public
communicator, went at each other for a second consecutive day.

Mr. Wells focused on Mr. Russert’s behavior when he was first called by an F.B.I. agent and asked about a telephone conversation he had had with Mr. Libby on July 10 or 11, 2003.

In
that call, the agent told Mr. Russert that Mr. Libby had said in an
interview that he first learned of the identity of the C.I.A.
operative, Valerie Wilson, from Mr. Russert in the July 2003 conversation.

Mr.
Russert told the agent that Mr. Libby’s assertion was untrue, that the
issue of Ms. Wilson never came up in that conversation.

Mr.
Wells, using the technique that Mr. Russert is known for as moderator
of “Meet the Press,” then put up on video screens throughout the
courtroom Mr. Russert’s words in an affidavit he filed later. In an
effort to avoid complying with a subpoena to testify about the same
subject before a grand jury, Mr. Russert swore that he could not
discuss the conversation because to do so would violate his deeply held
journalistic principles.

“Did you disclose in the affidavit to
the court that you had already disclosed the contents of your
conversation with Mr. Libby” to the Federal Bureau of Investigation,
Mr. Wells asked.

“As I’ve said, sir ... ,” Mr. Russert began.

“It’s a yes or no question,” Mr. Wells interrupted.

“I’d like to answer it to the best of my ability,” Mr. Russert replied.

“This
is a very simple question. Either it’s in the affidavit or it’s not,”
Mr. Wells said. “Did you disclose to the court that you had already
communicated to the F.B.I. the fact that you had communicated with Mr.
Libby?”

“No,” Mr. Russert said.

Good courtroom drama.

MORE: I am actually OK with "a victory of sorts". Here is the lead we expected:

In a stunning setback for the Libby defense, the judge upheld all but one of the counts in the indictment against him this evening...

AND the lead we wanted:

Glaring balefully at Special Counsel Fitzgerald, Libby Trial Judge Walton picked up a pair of scissors from his desk and carefully snipped out one paragraph from the original indictment. "There", sneered the judge to the clearly abashed Fitzgerald, "Maybe you will have better luck proving some of these other ones."

...MSNBC’s David Schuster said today’s revelations from prosecutors are
“new and will astound a number of people, even those who have been
following this case.” Among the new claims:

...

– “Scooter Libby destroyed a note from Vice President Cheney about their conversations and about how Vice President Cheney wanted the Wilson matter handled.”

We scoffed at the time, as did others, and no other news service picked up this "scoop".

And now time has passed, the prosecution has rested, and we wonder - did anyone hear anything about Libby destroying a note?

Of course not. But still we wonder - does NBC News have any sort of a corrections policy, or any mechanism for following up on this?

My suggestion - whenever Shuster is reporting, put a text crawl under him that reads "Gets bored in court and daydreams out loud".

No worries - I know NBC is on this.

MORE: Good point! Maybe Shuster is waiting for the defense to present this information...

PILING ON: Mark Kleiman's blog post, ironically titled "Vindication", continues to parrot (and amplify!) the Shuster fantasy, telling us that Libby "shredded notes from his conversations with Cheney". Well, I know that the author of the Same Facts blog will be keen to recognize the same facts as the rest of us stuck under this yellow sun.

Russert asked why it took so long for him to say anything about his testimony.

"When I was subpoenaed, we announced it," said Russert. "When I testified before Patrick Fitzgerald, we announced that in what I had said and so, too, with Time Magazine and The New York Times.

"Why did you wait almost three years to tell the public that you had been subpoenaed and what you said?" Russert asked.

Look, the situation was different. So this is unfair, too:

Russert asked Novak why he seemingly gave up so quickly without a fight.

"We were subpoenaed at NBC," Russert said. "We fought the subpoenas. Time Magazine subpoenaed, fought the subpoenas. The New York Times was subpoenaed, fought the subpoena. Why didn't you fight the subpoena?"

MR. RUSSERT: Newsday stands by that story. And you know if a politician
said that, which you said, and contrasted it with what you’re saying
now, people would say, “Wait a minute. Something’s wrong here.”

PILING ON: So, why might Tim Russert want to keep his dalliance with the FBI a secret? Here is a question he asked Matt Cooper:

MR. RUSSERT: Now, he came to Washington,
[Editor-in-cheif] Pearlstine, and some other editors from New Work and met with the
Washington bureau of Time magazine.

MR. COOPER: Sure.

MR.
RUSSERT: At least two correspondents produced e-mails saying, "Our
sources are now telling us they will no longer confide in Time
magazine. They will no longer trust us to protect our sources." Is
that going to be a long-term problem for your magazine?

Well gee, Tim - do you think the news that you folded up like a cheap suitcase when the FBI came calling will be a problem for NBC News? How might it affect Meet The Weasel? And did you think it might be a problem for lo those many years you kept that little secret?

MR. COOPER: Well, I'm not sure I have that many [regrets about the story and aftermath]. I mean, I believe
the story I wrote was entirely accurate and fair, and I stand by it.
And I think it was important because it was about an important thing
that was going on. It was called A War on Wilson, and I believe there
was something like a war on Wilson going on.

Jeralyn Merritt has copies of Fitzgerald's filing opposing the defense's effort to call Andrea Mitchell as a witness.

Shorter Fitzgerald: Since I never got around to asking Ms. Mitchell for her testimony under oath, it is not fair if the defense does.

Slightly Longer Fitzgerald: We don't need Ms. Mitchell's sworn testimony, since we can rely on her many public statements denying any involvement.

That is a pretty bold notion of jurisprudence, but it may represent a huge time-saver for police and prosecutors - just read the papers and if a person denies any involvement, well, case closed. Maybe in the day of Web 2.0, prosecutors can survey Facebook and YouTube to see if folks have posted denials there as well. "CSI-Miami" can become "CNN-Miami". Cool.

That should save all the tedium of swearing people in - gosh, it must be tiresome for poor Patrick Fitzgerald, who has no doubt had to sit through thousands of people raising their right hands.

And it would save on downtown parking, since folks won't have to come to court. It's all good!

Of course, there is the little matter of Libby's right to confront the witnesses against him. And Ms. Mitchell does work for Tim Russert, and Tim Russert has said it's "Impossible" that he knew about Ms. Plame, but Mitchell at one time said she did know about Ms. Plame, and the jury may want to assess Ms. Mitchell's denials for themselves - she was so timorous and evasive on Imus that folks listening nearly hurt themselves laughing, but perhaps this jury is made of sterner stuff.

And since we have heard from plenty of reporters who have tried to minimize their involvement in this case - Bob Woodward, for example, explained that he kept quiet about his leak in order to avoid a subpoena - it is even possible that Ms. Mitchell's public statements were meant to, uhh, deflect the prosecutor. Mission Accomplished!

Fitzgerald will lose this round as soon as the judge can get over the giggles.

Or, if Mitchell does not appear, I can offer a prediction - righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon.

MORE: The defense also responds to a prosecution attempt to keep NY Times editor Jill Abrahmson out of the trial. Again, this looks likes a loser for Fitzgerald - per the filing, Ms. Miller testified that shortly after getting the July 8 leak from Libby, she discussed the idea of a Wilson story with Ms. Abrahmson; in her public statement, Ms. Abrahmson has denied this. The defense notes that this ties directly to Ms. Miller's credibility, and believes that the jury might be interested to hear Ms. Miller flatly contradicted by her editor. I bet the judge will agree.

If lawyers used the phrase "pwn3d", defense attorney Wells would have been scrawling it on the whiteboard at the Libby trial today. With a bit of misdirection he induced Russert and Fitzgerald to demonstrate Libby's memory defense for him. But did he thank them afterwards? We will have to wait for the summation.

What happened is this - the defense was playing various videotapes of NBC coverage the day Libby was indicted, ostensibly to make the point that Tim Russert was pleased to see Libby indicted. However, Russert could not seem to remember much - more excerpts (Swopa 5) appear after the break but here is one for flavor:

W: Do you remember saying to Katie Couric about the indictment, "It's huge… first time in 130 years"?

T: No, I don't question that I said it, but I just don't remember.

W: Do you have a bad memory?

T: No.

W: You don't remember going on TV to discuss a historic indictment, where you were personally involved?

T: I do television a lot, a lot of stories and interviews.

Following the multiple demonstrations of Russert's inability to recall the morning's coverage, Special Counsel Fitzgerald took over on re-direct with this:

F: Which is bigger news, possible indictment or actual indictment?

T: Actual indictment.

F: What do you remember personally from October 28, 2005?

T: Press conference was a network interrupt, which was significant —
and then hearing my name, which was jolting. And then Brian Williams
talking me about the case and asking me to explain my role, which I
did. First time in my life I'd heard my name spoken by a prosecutor.

So let's see - Russert was all over the news shows that morning but
forgot what he said because it was unimportant. And Fitzgerald is OK
with that - it's only reasonable that Russert would remember the
important stuff and forget the rest.

No further questions. Geez, the Libby Defense Trust could have hired an expert memory witness, but why bother with these two at hand?

If you are relying exclusively on the mainstream media for coverage of the Libby trial, you are missing nearly everything.

But as a special one-day only treat, we have excerpts from Slate and The NY Times -try to guess whether these two reporters were even watching the same trial. Seth Stevenson of Slate first, on Tim Russert:

On July 6, she interviewed Joe Wilson on Meet The Press while Tim Russert was on vacation. [And who arranged the booking? Why, Ms. Mitchell herself called him - she had his phone number since she had tracked him down after the Pincus article on June 12.]

On July 8 she told us that CIA "operatives" had sent Joe Wilson to Niger without the knowledge of the top CIA brass. In his July 14 column Bob Novak used "operative" to describe Ms. Plame, who he also linked to the decision to send Wilson. Coincidence, same source, or what? FWIW, Novak got the Plame leak from Armitage of State on July 8.

On July 20 she got laughs by going public with a bit of a snit that Richard Armitage would no longer return her phone calls.

And in late September she broke the news of the CIA criminal referral that ignited this story.

She was covering this pretty carefully and talking to the same people in State who leaked to Novak, yet never got a leak herself? Even though she said the Wilson and wife link was "widely known"? Even though Armitage at State had no reason to think the Plame news was confidential or classified? Even though Armitage had also leaked it to Bob Woodward?

Whatever. It's easy to see why, if Ms. Mitchell has not disclosed that yet, she won't disclose it now - if she admits to having received an Armitage leak, that will be his third strike, and even the ever-patient Fitzgerald may become fed up with Armitage.

As a matter of source protection, she really needs to help Russert, NBC, and Armitage by keeping quiet *IF* he is, in fact, her source - obviously I am merely speculating as to scenarios and motives here.

Or, she could blurt out that she has a source, expose Russert to perjury charges (never happen, of course), expose her source to possible perjury charges, and, uhh, move on. Make the call!

SINCE YOU ASKED: My prediciton is, she has a story and is sticking to it. Let's hope the jury can't hear the snickers and laughter from the media room.

AND BACK IN REALITY: The prosecution wants to keep out the Mitchell tapes, and the judge is leaning their way. No worries - The Decider will pardon Libby this afternoon if we don't hear from Mitchell. (Hyperbole, folks.)

Tim Russert's testimony, as elicited by the defense, painted a picture of a pundit with a puzzling problem. Arianna Huffington has a great collection of links and a quick summary of Russert's baffling testimony and Jane Hamsher offered some helpful hints as well [and let's include Swopa's liveblogging 1, 2, 3, 4, 5, 6].

Let me point out a few dots that the defense has introduced and make some predictions about how they will attempt to connect them. In one sentence, the defense insinuation will be that Russert cooperated with the FBI investigation and committed a firing offense by keeping that from his NBC overlords; he also misled the FBI and the grand jury about his talk with Libby in order to minimize his own role in this case.

Please keep in mind - I am attempting to predict defense strategy, not ascertain "the truth".

Here we go:

1. Russert testified that he cooperated with the FBI investigation in November 2003.

2. Russert then testified that he couldn't remember whether he mentioned this cooperation to his boss and friend, Neal Shapiro of NBC News.

3. In 2004 NBC News filed a brief resisting Special Counsel Fitzgerald's attempt to subpoena Russert's testimony; Fitzgerald also submitted a filing, both of which are available here (and we thank Mss. Huffington and Hamsher). The NBC brief did not mention Russert's earlier cooperation, which seems to be a bit duplicitous; one might even use phrases like "false" and "misleading the court".

So where is the defense headed? Well, let's imagine that, despite Russert's non-memory, he did in fact tell Neal Shapiro that he had been approached by the FBI in the Plame investigation. Is Mr. Shapiro really going to take the stand and tell the court that yes, after learning that Tim "The Franchise" Russert, his Washington Bureau chief, was embroiled in the biggest political scandal of the year, he simply blinked and moved on the next topic? Is he going to say that he barely remembers it himself and is not surprised that Tim has forgotten?

Please. There were obvious First Amendment press freedom issues to be discussed, as well as the practical question of whether it would be appropriate for Tim to continue covering a story of which he was a part. So Mr. Shapiro will tell the court that, after Russert told him about the FBI investigation and EMT technicians had re-started his heart, he and Tim got into the issues. How could Tim forget this conversation? Hard to imagine.

Unless, of course, when Russert says he can't remember, he means that he did not tell Shapiro at all. Is it even remotely plausible that a reporter would cooperate with the Feds and not tell management?

Well, yes. Viveca Novak, former reporter for TIME, did exactly that on this very Plame case:

...the next week he told me
Fitzgerald did indeed want
to talk to me, but informally,
not under oath. I hired a lawyer, Hank Schuelke, but I didn't tell
anyone at TIME.

Did I mention that she is a "former" TIME reporter? She eventually told her bosses about Fitzgerald's interest, went on a leave, and never made it back.

So let's see - it's impossible to believe that Shapiro will testify that Russert told him but that the conversation was brief and forgettable. That makes it easier to believe that Russert pulled a Viveca and tried to keep his cooperation quiet. That means he also kept quiet when NBC filed the misleading affidavit opposing his subpoena.

Might those be firing offenses? Might that give him five million reasons a year to want to avoid any further trouble on this story? I bet the defense will raise that question.

And what about Special Counsel Fitzgerald? His role is a bit of a mystery here as well. Look through his 48 page argument explaining why Russert should be compelled to testify and riddle me this - why is there no mention anywhere of the fact that Russert has already cooperated with the FBI? As noted by Ms. Hamsher, Fitzgerald was delighted to point out that Russert had disclosed Richard Clarke as a source; surely the I. Lewis Libby example was even more on point.

Well, if the defense can raise questions, they can also insinuate answers - Fitzgerald was well aware of Russert's little problem and threw him a rope, at least in the public filing (there is also an Affidavit of Special Counsel which may cite the FBI cooperation.) So, Fitzgerald kept quiet about Russert's problem, and now Russert is delivering payback with his still-helpful testimony. True? Who knows? Reasonable doubt? Make the call!

Let's connect a few more dots. Let's imagine, HYPOTHETICALLY, that Russert did in fact mention Wilson's wife to Libby - why would he lie to the FBI about that?

Simple - his source was Andrea Mitchell; if Russert admitted he had a source, he would not be able to invoke reporter-source privilege (and lose that fight in court). Instead, he would have to give up Ms. Mitchell and let her fight to protect her source (a fight she would have lost, if Judy Miller and Matt Cooper are useful examples).

And the impact on Tim? Well, NBC reporters might be a bit less forthcoming with Tim if talking to Tim led to being subpoenaed. And it would be harder to be Washington Bureau Chief if the other reporters stop talking to you, yes? Maybe he could think of five million reasons a year to minimize his own involvement in the investigation - protect sources, protect Andrea, protect his paycheck.

And why would Tim worry that his little white lie would come back to bite him? It may never have occurred to him that Libby would be indicted, not for leaking, but for perjury. Russert may have figured, back in 2004, that since he he given info to Libby, Libby did not have a problem. Oops.

And a last thought - the initial, carefully worded NBC "denial" that Russert provided information about Ms. Plame to Libby was an attempt to keep Tim's options open - he had a good idea of "the truth", but was not clear just where he was going to jump when push came to shove. Just a guess. Now he has testified and has jumped in the direction of "I had a story and I'm sticking to it".

As to the "truth" of the above scenario, who can say? But I do predict that the defense will insinuate something like this as a motive for Russert to stick with his story.

PILING ON: NBC has been fighting like fury to quash subpoenas to other NBC reporters (have fun storming the castle, boys!); Fitzgerald wants to keep quiet his negotiations with Russert. No, I don't smell a rat... more like fish, actually. But whatever it is, the defense will feast.

PAGING CAPTAIN QUEEG: Russert's testimony about his chat with Libby is that he does not remember not discussing Wilson's wife, but since he had only learned about her later, it is impossible:

W: Do you have a present recollection of not discussing Wilson's
wife, are you just reasoning backwards from the fact that you did not
know about her until Novak's column.

T: I have no recollection, but it would have been impossible.

Well. Captain Queeg proved mathematically that there was a key to the refrigerator which had contained the strawberries, but his proof was undermined by false testimony.

If the defense can undermine the notion that it was "impossible" for Russert to have known, then his non-recollection becomes a real problem with his testimony. And Andrea Mitchell is up today.

WHERE ARE THE PROSECUTION WITNESSES? From Russert, via a liveblog:

W: But Fitz agreed to limit questioning.

(Tim begs to differ. He pours some water as Wells puts a letter on the screen.)

W: (quotes the letter in which Fitz promises to limit questioning) He was limiting the questioning, right?

T: I was not familiar with exact letter, but as I read it now, I understand it.

This could become a journalistic snuff film.

ERRATA: I know Mickey Kaus discussed Russert's conflict of interest challenge (reporting on a story in which he was involved) way back when. What I don't know is how to breeze through the Slate archives, but let me give credit where due.

It's not that NBC's "reporters" aren't telling the whole story [that Libby called to complain about coverage of the Niger story rather than, for example, coverage of Cheney's energy task force]. They
aren't even telling the minimal, basic gist of the story that others
are telling. It's getting cult-like and creepy!**

Why would NBC keep its viewers in the dark--letting them think that maybe Libby was calling to complain about a report on global warming? Possible answers: a) They're worried they might encourage early challenges to Russert's credibility; b) They're hiding something; Or c)
If press accounts make Russert seem even more embroiled in the
Wilson/Libby case than he is now, he will inevitably have to give up
his perch as "neutral" moderator of Meet the Press, at least temporarily? ( I don't think he should have to give it up--it makes for better TV if he's a player! But there would be pressure for him to do so.) ... kf thinks: (b)!

Can he still keep his seat? I bet yes - the media clamp-down on this story has been nearly total.

JUST TO HELP: At the end of Swopa 3:

W: Right after Libby was indicted, do you remember having a roundtable discussion on TV?

Objection. Sidebar.

W: Do you remember roundtable disussion on Libby indictment?

T: Probably two of those — on MTP, and on CNBC

W: And on CNBC, roundtable was you, Gregory, Mitchell, and Pete Williams. Correct?

February 07, 2007

Russert on the Hot Seat

Clarice FeldmanOne of the differences between reading live blogging of the Libby Trial and reading or hearing news accounts, is that we have it in real time. Even the most skillful of reporters in the court like Matt Apuzzo have filing deadlines which usually means that they get the direct testimony but not the cross examination in their first stories. But in this case the cross examination is the story.

Tim Russert, who is a key prosecution witness, took the stand for about 11 minutes today to say that he had not mentioned the name of Wilson's wife in his call to Libby. (Libby's grand jury testimony is that he called Russert to complain about the coverage Chris Matthews was giving the Wilson claims, that the conversation was rather heated and was at one point broken off and resumed later or the following day.)

Then cross examination began, and Russert's credibility as a witness was deeply shaken.

Russert said it was "impossible" that Wilson's wife was mentioned in that call because he didn't know it then.

Wells confronted Russert with an incident where he was angry about an article in the Buffalo News critical of Russert's treatment of Hillary Clinton when Russert moderated a Clinton-Lazio debate. Russert had called the reporter twice to complain about the piece, and then denied any recollection of those calls. Finally he wrote a letter of apology, claiming he had no recollection of those calls himself and only his notes revealed the calls had, in fact, been made. (Background to this is here)

Except where otherwise noted, all trial summaries were prepared today by Mainewebreport owner, Lance Dutson. They are not verbatim , official transcripts.

Memory problem occurred in May , a few months before you testified, correct?yes

You admitted you r error as the result of your subsequent review of your files?yes

But for the existence of your written notation, you would have continued to believe that you had not made the call correct?I did not recall.

And to the Libby call, you have no written notes?No

Wells asked him is he'd ever told the FBI that he may have discussed Wilson's wife with Libby in that call and when he denied that, Wells confronted him with an FBI report saying he had.

(From the Media Bloggers Association summary account of the examination):

Are you telling me as an aggressive newsperson, who is know for going after the facts, that you wouldn't ask questions about one of the biggest stories in the world that week? I described what occurred

No recollection of discussion about Wilson in the conversation

You have no recollection of NOT having a conversation about Wilson's wife?

Don't understand question

Do you have a present recollection that you did not ask about Mrs. Wilson, or are you reasoning backward because you did not know about her until Novak's column.I have no recollection, and it would have been impossible.

(snip)

First time you were asked about week of July 6 conversation was in November 2003?Correct

You have no notes of conversation?No

No file memorandum close to the conversation?No

You can't even remember if you had one or two conversations that week?I believe it was one, but not sure

You told FBI that you remembered at least one and maybe two conversations ?I only recall one conversation

So the FBI would have been incorrect?(Wells brings FBI notes to show Russert)

Russert gets notes, puts on glasses. Judge tells him to read it to himself. Russert says ‘Its two pages', Wells points to top of page and says just that.

But the best was the last: Wells brought out that despite filing a pleading in the case seeking reporter testimony arguing that the privilege for confidential sources was key and moving to quash the subpoena served on him, he had already twice recounted both sides of his recollection of the Libby exchange well beforehand and had hidden that from the court in the pleading and the public in what had first appeared to be a principled stand for reporters' privilege.

NBC statement: Says Russert received subpoena to testify before a special grand jury investigating the Plame leak. Russert and NBC intened to fight the subpoena, Russert was not the recipient of the leak. NBC is resisting becuase fo the chilling effect, Shapiro says American public will be deprived of information becuase of this, because people will simply stop speaking with the press.

Wells knocks it home right here:

Is there any mention in this statement that you freely shared the content of Libby's call with the FBI agent in November 2003?No

Does Shapiro know that you freely discussed the Libby conversation with the FBI?I don't know

Did you ever have a conversation with him about this?I do not know, I cant recall

Do you think, given your pattern and practice, that you would have told Shapiro about your free conversation with the FBI without refusing [b]ased on confidentiality?I do not know, I don't recal

Wells is frying Russert here. This point is very strong, it shows the potential hypocrisy of NBC's statement and the subpoena resistance, since Russert had already spilled the beans so readily and without reservation about an established off the record conversation with Libby.

Wells submits as evidence, and displays, a declaration by Russert filed with court. Paragraph 5 emphasizes that an essential part of his job is keeping conversations with government officials confidential, that he will not discuss identities or information publicly.

W: You are swearing that you will not release confidential information freely, right?

W: You don't say that you had already talked to this to Agent Eckenrode in Nov 2003.

T: There is no mention of it.

W: You had already disclosed the substance of the conversation

T: There's a difference

W: But this does not say you had confirmed the existence of the conversation, and the content of it as well.

T: Correct.

W: In June 2004, your position that you could not do this.

T: Correct.

W: In Nov 2003, you violated this, didn't you?

T: No, because they asked about my side of the conversation, and conversation was a viewer complaint.

W: Are statements to Judge Hogan true or false?

T: So you violated these statements when you talked to Eckenrode [the supervisinf FBI official].

T The focus was on my words at that time, and Libby's viewer complaint was not in any way confidential. As is my policy, I did not report on them.

W: So why say you can't talk about the same conversation?

T: We did not want to get involved in an open-ended fishing expedition.

W: (Accuses Russert of making a false statement to federal judge)

T: I just talked to Eckenrode about my side of the conversation

W: You talked to him about both sides of the conversation

T: I listened to him describe Libby's side.

In sum, Wells established that (a) the FBI report of his conversations (they say he had two, he only recalls one) made far closer in time to the event indicate he conceded that Ms. Wilson's name may have come up in their conversation though he earlier discounted that as "impossible" (b) In a heated matter involving the Buffalo News, his own memory was faulty. He'd made two angry calls to a critical reporter, denied that he had, and then, after checking his phone records, apologized, asserting he had no memory whatsoever of the calls, and (c) while making an impassioned plea for the right of reporters to protect the confidentiality of sources, he'd already twice discussed the Libby exchanges with the FBI and failed to disclose that to the Court or the public.

From a filing by the prosecutor last evening trying to block inquiry into the accommodations made to Russert for his (total of 22 minutes) deposition testimony in his lawyer's offices, it appears that while this last point was not specifically noted in any pleadings I can see, the defense was provided with the FBI notes which provided some notice to them of the discrepancies in the NBC public pleading and that it contained a false suggestion that Russert had not already cooperated with the government. It is not clear that this Court, or the Court which determined the related case on the reporters' obligation to testify, was ever informed that the Russert filing was false.

I cannot believe that tonight is a good night for Russert or for his colleagues Andrea Mitchell and David Gregory, whom I also expect to be on the stand.

The prosecution filed a motion to block Libby from calling her to the stand. I'd be surprised if that succeeds. The prosecution has also signaled it intends to argue that all reporters were treated gingerly because of the constraints of the Department of Justice regulations. In fact, many reporters who clearly were aware of the Wilson/Plame connection were - like Andrea Mitchell (Russert's colleague who famously indicated they all knew) - never questioned by the prosecution or the investigators.

I'll be very surprised if in a case risibly claiming the defendant obstructed the investigation, the defense is precluded from showing that, blinded by his nonsensical view of what happened, the special prosecutor obstructed the investigation himself. We know he granted immunity to the two people who admitted they deliberately leaked Plame's identity (Ari Fleischer and Richard Armitage) and steered clear of so many journalists who obviously knew more about the Mission to Niger and its participants than anyone in the White House did.

I predicted at the outset, the media would regret what they asked for. I was right. In Spades.

February 06, 2007

Nick Kristof, cloistered behind his TimesSelect barrier, exhorts Dick Cheney to "tear down this wall" and answer a few questions about his role in the Plame leak. Let me lead with Kristof at his most misleading, rather than at his most amusing (His Q&A emphasis):

When you discussed Joe Wilson with Mr. Libby onAir Force Two on July 12, 2003, what instructions did you give him?

Trial
testimony indicates that on that flight, Mr. Libby looked over some
questions a reporter had sent in about Mr. Wilson and then said: “Let
me go talk to the boss and I’ll be back.” After consulting with you,
Mr. Libby later called reporters to feed them a skewed version of Mr.
Wilson’s trip.

Mr.
Cheney, on that plane, did you specifically tell Mr. Libby to leak to
reporters the fact that Mr. Wilson’s wife worked at the C.I.A.?

Deborah
Bond of the F.B.I. has testified that Mr. Libby acknowledged in one of
his interviews that on that flight, he might have talked to you about
whether to tell the news media about Valerie Wilson. So did he?

Since
Mr. Libby is renowned for his caution, it seems highly unlikely that he
would have leaked classified information twice to reporters right after
talking to you, unless you had sanctioned the leak.

Let's focus in "it seems highly unlikely that he
would have leaked classified information". Does the likelihood of a leak change if Mr. Libby was not aware that the information was classified?

As I am sure Mr. Kristof is aware, Mr. Fitzgerald has never presented or developed evidence that Mr. Libby was aware of Ms. Plame's classified status prior to the publication of the Novak column on July 14, 2003. Apparently, Libby's CIA briefer did mention the possible problems of having a covert agent outed after the column appeared, but here is the famous Fitzgerald footnote from 2004:

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

The jurors will see even less than that, per Walton's rulings. But even in his court filings, Fitzgerald has never advanced the case that Libby had prior knowledge that Plame's status was classified.

Is Kristof ignorant of all this, or is he simply attempting to mislead his readers? Who knows.

Neil Lewis of the Times continues to cover the Libby trial and he continues to deliver his version of the old George Carlin joke, which I paraphrase: "In baseball action, we have some partial scores; it's Detroit 2. Now for the weather..."

My plea to Mr. Lewis - this trial has involved defense attorneys responding to the presentation offered by Special Counsel Fitzgerald; feel free to feature both. Here is his latest silly lead:

WASHINGTON, Feb. 5 — Prosecutors in the perjury trial of I. Lewis Libby Jr.
on Monday played audio tapes in which Mr. Libby was heard testifying
under oath before a grand jury that he had not discussed the identity
of a Central Intelligence Agency operative with fellow administration officials in the summer of 2003.

The sound of Mr. Libby’s disembodied voice coursing through the
courtroom vividly underlined the contrast between his sworn account and
the testimony of the parade of prosecution witnesses presented to the
jury in the last two weeks.

A parade? I love a parade! But what witnesses did Mr. Lewis have in mind?

Marc Grossman of the State Dept., who told the FBI that he spoke with Libby on the phone about Ms. Plame but told the jury they spoke face to face?

Bob Grenier of the CIA, who told the FBI and the grand jury that he was not sure whether he mentioned Ms. Plame to Libby, but had finally remembered in 2005 that he had?

Craig Schmall of the CIA, who told the jury that he must have mentioned Plame because it was in his notes, but he that he does not actually remember having done so?

Cathie Martin of Cheny's press relations office, who told the jury she briefly mentioned Plame to Libby sometime in June or July; eventually that was dated to June 11 and (my guess) is the Cheney-Plame reference Libby does remember from that period.

And Ari Fleischer and David Addington joined the parade as well.

So, three out of six had a credible memory of discussing Plame with Libby. Three out of six did not. Let me suggest a different lead:

WASHINGTON, Feb. 5 — Prosecutors in the perjury trial of I. Lewis Libby Jr.
on Monday played audio tapes in which Mr. Libby was heard testifying
under oath before a grand jury that he had not discussed the identity
of a Central Intelligence Agency operative with fellow administration officials in the summer of 2003.

The sound of Mr. Libby’s disembodied voice coursing through the
courtroom vividly underlined the hazy memories on display over the last two weeks when the jury heard from three prosecution witnesses who had vague or unreliable memories of discussing Plame with Libby at all.

Just a suggestion.

Eventually Mr. Lewis does acknowledge the efforts of the defense side, here at the bottom of the story:

To demonstrate that Mr. Libby lied to the F.B.I. as well, which is
charged in the indictment, prosecutors put Deborah S. Bond, an agent,
on the stand. Ms. Bond, who was present at the two interviews of Mr.
Libby in his office in October and November of 2003 completed her
testimony on Monday but acknowledged she may have testified incorrectly
last Thursday.

Theodore V. Wells Jr., Mr. Libby’s chief defense lawyer, was
magnanimous with a purpose when he pointed out her error over a
conversation between Mr. Libby and Karl Rove, the deputy White House chief of staff.

“I can’t believe I said it,” Ms. Bond said when shown last week’s
testimony. Mr. Wells then prodded her to say that she must have
answered in good faith but simply forgot, a proposition to which she
readily agreed.

It was a reminder to the jury that one of the pillars of Mr. Libby’s
defense was that if he spoke inaccurately to the grand jury and
investigators, it was only a case of faulty memory.

With any luck Times readers won't make it that far.

MORE: I'm on such a roll that if I left out a witness, I don't even want to know. But I suppose you ought to tell me.

UNRELENTING: Mr. Lewis has almost surely made a hash of this:

On the tape, Mr. Libby was heard saying repeatedly that he could not
recall any conversation he ever had with Marc Grossman, a State
Department official, about Ms. Wilson.

Mr. Grossman, who was then the under secretary of state, has already testified about two such conversations.

Please - Grossman testified to more than one chat with Libby about the Wilson trip, but he claimed only one brief mention of the wife.

However! Grossman did tell two different versions - with the FBI the disclosure to Libby was over the phone, but it was face to face with the jury. Maybe that was what Neil Lewis had in mind.

Judy Miller's testimony was filled with mystery. She originally told the grand jury that she had no recollection of a June 23, 2003 meeting with Libby, and believed she chatted with his assistant. At the exhortation of Special Counsel Fitzgerald she checked for additional notebooks and (yea!) found some in a shopping bag under her desk. A notebook entry about a June 23 meeting with Libby so refreshed her memory that, although it is not memorialized in her notebook, she could even recall his demeanor as angry and upset.

Oddly, however, other entries in her notebook lack a similar power to spur Total Recall. Her notation about "Valerie Flame"? Ms. Miller has no idea how that got there, but she thinks it was not related to Libby. She believes she talked to other sources about Ms. Plame, but can't remember who. In fact, she apparently spent 85 days in jail without being able to remember who it was she might be protecting.

The Matt Cooper story is critical here. Mr. Cooper was cited for contempt in the summer of 2004 for refusing to respond to a subpoena from Special Counsel Fitzgerald ordering him to testify about conversations with I. Lewis Libby. Eventually a deal was struck, Cooper testifed, and guess what? During his Libby testimony he told Fitzgerald that he had other sources for the Plame leak, so Fitzgerald slapped him with a second subpoena.

So - one might guess that Ms. Miller concluded that forgetting about other sources was more prudent than the strategy adopted by Mr. Cooper. Here is a WaPo recap:

Initially, Fitzgerald appeared focused on the theory that Libby had
leaked Plame's identity, according to lawyers involved in the case. He
had interviewed three other reporters about their conversations with
Libby, but all three indicated he either did not discuss Plame or did
not reveal her identity.

He also sought testimony from Cooper
about his July 2003 story in Time. In 2004, Cooper obtained a waiver
from Libby to discuss their conversation, as had the three other
reporters.

Cooper and his attorneys were surprised that
Fitzgerald agreed to ask Cooper questions only about his conversations
with Libby, sources familiar with the investigation said.

The
sources said Fitzgerald looked surprised in the August 2004 deposition
when Cooper said it was he who brought up Wilson's wife with Libby, and
that Libby responded, "Yeah, I heard that, too."

The prosecutor
pressed Cooper to then explain how he knew about Wilson's wife in the
first place, and Cooper said he would not answer the question because
it did not involve Libby, the sources said.

That testimony
contributed to a lengthy legal battle, as Fitzgerald sought to compel
Cooper to testify before a grand jury about his conversation with the
source. He also sought testimony from New York Times reporter Judith
Miller.

Ms. Miller may have concluded that surprising the Special Counsel with new sources is a mistake.

And why might she choose to stick with her original story rather than allow her memory to improve with age, as happened with CIA official Robert Grenier? Let me suggest a simple, plausible, but HYPOTHETICAL reason - she is protecting Robert Armitage.

In June 2003 Ms. Miller, who had covered the State Dept. at one time, was asking questions about the Wilson trip. Robert Armitage was leaking to Bob Woodward about the Wilson trip, and had no particular reason to think that the Plame tidbit was sensitive.So maybe he mentioned it to Ms. Miller. Implausible? They were both in the Aspen Institute, they were linked to Ahmad Chalabi and the Iraqi National Congress - where is the reasonable doubt threshold here?

But if Armitage did leak to Miller, it was surely obvious to Ms. Miller that Fitzgerald was unaware of this. And by the summer of 2006 it became public knowledge that Armitage had been a double-leaker, to Novak and Woodward.

Leaving Ms. Miller where? If she testifies that her new and improved memory is that Richard Armitage was her original source and that she may well have asked Libby about Plame in June, even Fitzgerald's patience with Armitage may become exhausted. Armitage was forthcoming about Novak, but forgot Woodward; he remembered Woodward, but forgot miller - maybe this will start to look like obstruction.

So perhaps Ms. Miller is worried that if her memory improves her testimony might be critical is sending her original source to jail. What to do, what to do?

This is speculative, and I have no idea what the defense may plan to present when they tackle Miller's testimony in their Big Finish. However, the scenario above strikes me as a plausible argument explaining why Miller might be shading her testimony, why she may have concealed that she asked Libby about Plame (that admission would make the existence of a prior source obvious), and why she is continuing to be resolute in her forgetfulness. At the level of reasonable doubt, a jury may have trouble dismissing the possibility that Ms. Miller is covering for someone else.

February 05, 2007

The Libby trial finished for last week on Thursday with the start of the cross examination of FBI agent Deborah Bond, the interrogator who first questioned Libby. The cross examination revealed that Bond was hostile, that she had neglected to fully incorporate into her notes of the interview important portions of his testimony, most especially some matters that Libby's counsel had specifically asked be included. These were:

o Libby's statement at the initial interview that he had been unable to review his own notes;

o that his memory of the events was imperfect;

o that he was offering up just his present sketchy recollection; and

o that he could be more precise after he'd had an opportunity to review his notes.

(Neverthess, even in that initial interview when he was relying solely on his recollection he said he believed the Vice President had told him on about June 12, 2003 that Wilson's wife worked in counter proliferation.)In his second interview, after he'd had an opportunity to review his notes, he volunteered to the FBI again that he'd first heard about Joseph Wilson's wife on June 12, 2003, when the Vice President told him. (I do not have transcripts of the trial testimony but there are summaries of the testimony provided by Firedoglake .)

Just One Minute trial mavens note that in the counts of the indictment relevant to the FBI interviews, once again the prosecution has far overstated the evidence in the indictment. We are also learning that the FBI still relies on the antique and inaccurate method of recording these interviews: the hand written notes of the interrogator, instead of videotapes. This process is surely inadequate and subject to bias.

This lack of an actual video or even audio recording of the interview is certainly going to appear more significant as the cross examination proceeds. This method of interview recording by interrogator's hand is also under fire in the Hamdania court martial, where the defense had put into evidence interview notes taken by members of the Naval Criminal Investigation Service at direct odds with affidavits sworn by those who provided those interviews.

At one time, before the more aggressive prosecution of those accused of making false statements to investigators, this technique with all its flaws may have escaped the scrutiny it deserved. The Libby case is a rare case, seemingly outside the Department of Justice practice: a case where he prosecution is seeking to convict on "lies" not made about any criminal conduct.

Azaghal, one of my favorite commentors and one most knowledgeable about law enforcement procedures and practices observes:

Fitz[gerald's] distillation of Libby's Russert related testimony bears little resemblance to his actual testimony. It sounds to me more like a man trying to provide as clear as possible an account of what transpired months previously to the best of his recollection, not someone trying to confuse. Given that he corrected his initial statements to the FBI, I don't see what interest of justice is served in pursuing him with a perjury or obstruction or false statement prosecution. The correction it seems to me obviates any obstacle to the investigators; therefore it's abusive to prosecute on such flimsy grounds. I should add, that in circumstances in which a witness has been directed by his superiors to cooperate and not assert his constitutional rights, the prosecutor should definitely take into account the entire sum of the witnesses testimony, the cumulative effect and merit of the information he provides--has it assisted the investigation overall. After all, even cooperating and immunized witnesses like Fleischer offer testimony that conflicts with other witnesses who have no reason to lie (Dickerson, for example), and there's no apparent reason why Fleischer should lie about anything--his recollection, like that of virtually everyone, is fallible. From what I've seen of Libby's testimony and from the FBI's testimony about his correcting his initial statements it seems absurd for the prosecution to claim that the meat of his testimony and statements to investigators was an attempt to derail an investigation. And that's especially true given what we know about the predication of the investigation--information that Fitz[gerald] concealed from courts of review, thus depriving these courts of information that could well have affected their decision regarding the disclosure of journalistic sources. In a situation like this, when the prosecutor doesn't exactly have clean hands himself, it's doubly abusive for him to bring such charges.

Do we really want a situation in this country in which, whenever the FBI comes knocking, the citizenry's first reaction is to lawyer up and assert their 5th amendment rights for fear of being prosecuted for any inaccuracies in what they might say? I doubt that the FBI itself wants that to happen, but the excesses of prosecutors like Fitz[gerald] and Comey will lead toward that becoming more the norm than it is."

Indeed, that is my advice to all of you under the present circumstances, should you ever be questioned in an investigation: Lawyer up, unless the FBI gets honest and uses videotapes or prosecutors stop such nonsense.

And the next time there's a president who agrees to the appointment of such a "special special prosecutor" and demands the cooperation of all officials and staff with it, everyone working for him should resign and take the Fifth.

Working in the White House is hard, thankless, underpaid work. It is too much to ask that one should also agree to be a piñata for an unsupervised, unreasonable, utterly abusive proceeding like this.

Plame's employment at the CIA was classified, making it illegal for any
official to knowingly and intentionally disclose it. Special Counsel
Patrick J. Fitzgerald's 22-month investigation did not produce charges
of that offense.

Special Counsel Fitzgerald has asserted that Ms. Plame's status was classified and we have no cause to doubt him. However, the Intelligence Identities Protection Act requires more than that - my goodness, was it two years ago that Victoria Toensing and Bruce Sanford addressed these specifics on the very pages of the Washington Post? Briefly, in addition to having classified status a "covert" agent must have served outside the United States within the previous five years; the US must be taking active steps to conceal the agent's identity; and the discloser must be aware of the agent's status.

This is all quite relevant to the trial - Libby, a lawyer, had received from Addington (Chief Counsel to the Office of the Vice President) a copy of the IIPA, so he was in a good position to judge his legal vulnerability, or lack thereof. Of course, that cuts both ways - maybe it was clear to Libby that he had no legal problems and simply testified without any particular preparation. Or maybe Libby realized he had a serious problem and invented his "I Forgot" story. However, there is no evidence that anyone had apprised Libby's of Plame's status.

PILING ON: I want to come back to this from the WaPo:

Over the course of that week in July, bracketed by Wilson's published
criticism and Cheney's flight back from Norfolk, three senior White
House officials -- Libby, Fleischer and special presidential assistant
Karl Rove -- inaccurately told or suggested to five reporters that
Wilson had been dispatched to Niger by Plame, according to the
testimony. Deputy Secretary of State Richard L. Armitage separately
told columnist Robert D. Novak that Plame worked at the CIA, and Novak
made that news public July 14.

February 02, 2007

David Corn wraps up yesterday's activity in the Libby trial and has fun trying to palm an official (or is it classified?) card:

So, Fitzgerald maintained, Libby lied. Libby told the agents that he
had merely picked up scuttlebutt about Valerie Wilson and her CIA
connection from Tim Russert of Meet the Press and had passed that gossip to other reporters. No big deal.

During the trial, though, Fitzgerald has presented testimony and
evidence indicating that at least five government officials--including
Cheney--had provided Libby with official information about Wilson's wife. Former press secretary Ari Fleischer, former New York Times reporter Judith Miller and Matt Cooper have testified that Libby shared this information with them.

Ahh, official information! And that is Mr. Corn's emphasis. A bit later, he makes his point more clear:

Fitzgerald said on Thursday, when questioned by the FBI, Libby had "to
say that what he leaked to reporters was not [from] an official
source....He [had] to tell a story that is consistent with what he just
had the White House tell the world." Thus, he cooked up a false
account: Russert had been his source and at the time of the leak he
possessed no certain and official (a.k.a. classified) information about
Wilson's wife.

"Certain and official (a.k.a. classified)"? I wonder if Mr. Corn's readers are really this gullible.

Oh, well. As an offset to Mr. Corn's pretense that "official" is also known as "classified", lets cut to Mr. Fitzgerald's 2004 affidavit with its famous footnote (via Byron York):

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

And that, despite all the "official" sources.

PILING ON: Mr. Corn goes willfully ignorant here - maybe he is long tinfoil and wants to hearten the conspiracists:

Bond disclosed that during Libby's second FBI interview he said he
believed that after he had spoken to Russert (and supposedly had
learned anew that Wilson's wife was CIA) he and Cheney discussed
whether to disclose Valerie Wilson's CIA connection to the press. But
Libby told the FBI he wasn't sure such a conversation had happened.

Still, this was news. That statement probably caused FBI agents and
Fitzgerald to wonder during the investigation if Cheney and Libby had
conspired to leak information on Joseph Wilson's wife. If Cheney takes
the stand, a sharp juror ought to be interested in hearing whether the
vice president has anything to say about this. (The safe bet: no.)

Take the safe bet. Left unmentioned by Mr. Corn - Fitzgerald interviewed Cheney during his investigation; Fitzgerald also announced that he won't be calling Cheney as a witness.

Would that be consistent with Cheney admitting that he had discussed Plame with Libby prior to Libby's July 12 phone calls with Miller and Cooper? Please.

January 31, 2007

Tim Russert is on deck in the Libby trial, so let's have some background.

Per the indictment, Libby falsely claimed that Tim Russert told him about Valerie Plame on July 10 or 11: Libby also was hearing this "as if for the very first time", since he had forgotten the earlier mention from Cheney:

20. On or about July 10, 2003, LIBBY spoke to NBC Washington Bureau
Chief Tim Russert to complain about press coverage of LIBBY by an MSNBC
reporter. LIBBY did not discuss Wilson's wife with Russert.

...

26. As part of the criminal investigation, LIBBY was
interviewed by Special Agents of the FBI on or about October 14 and
November 26, 2003, each time in the presence of his counsel. During
these interviews, LIBBY stated to FBI Special Agents that:

a.
During a conversation with Tim Russert of NBC News on July 10 or 11,
2003, Russert asked LIBBY if LIBBY was aware that Wilson's wife worked
for the CIA. LIBBY responded to Russert that he did not know that, and
Russert replied that all the reporters knew it. LIBBY was surprised by
this statement because, while speaking with Russert, LIBBY did not
recall that he previously had learned about Wilson's wife's employment
from the Vice President.

That leads to the following charges:

33. It was further part of the corrupt endeavor that at the
time defendant LIBBY made each of the above-described materially false
and intentionally misleading statements and representations to the
grand jury, LIBBY was aware that they were false, in that:

a. When LIBBY spoke with Tim Russert of NBC News on or about July 10, 2003:

i.
Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for
the CIA, nor did he tell LIBBY that all the reporters knew it; and

ii.
At the time of this conversation, LIBBY was well aware that Wilson's
wife worked at the CIA; in fact, LIBBY had participated in multiple
prior conversations concerning this topic, including on the following
occasions...

And let's include one more for a flavor of Libby's testimony:

THE GRAND JURY FURTHER CHARGES:

1. The Grand Jury realleges Paragraphs 1-30 of Count One as though fully set forth herein.

2. On or about March 5, 2004, in the District of Columbia,

I. LEWIS LIBBY, also known as "SCOOTER LIBBY,"

defendant
herein, having taken an oath to testify truthfully in a proceeding
before a grand jury of the United States, knowingly made a false
material declaration, in that he gave the following testimony regarding
a conversation that he represented he had with Tim Russert of NBC News,
on or about July 10, 2003 (underlined portions alleged as false):

.
. . . And then he said, you know, did you know that this -- excuse me,
did you know that Ambassador Wilson's wife works at the CIA? And I was
a little taken aback by that. I remember being taken aback by it. And I
said -- he may have said a little more but that was -- he said that.
And I said, no, I don't know that. And I said, no, I don't know that
intentionally because I didn't want him to take anything I was saying
as in any way confirming what he said, because at that point in time I
did not recall that I had ever known, and I thought this is something
that he was telling me that I was first learning. And so I said, no, I
don't know that because I want to be very careful not to confirm it for
him, so that he didn't take my statement as confirmation for him.

Now,
I had said earlier in the conversation, which I omitted to tell you,
that this -- you know, as always, Tim, our discussion is off-the-record
if that's okay with you, and he said, that's fine. So then he said -- I
said -- he said, sorry -- he, Mr. Russert said to me, did you know that
Ambassador Wilson's wife, or his wife, works at the CIA? And I said,
no, I don't know that. And then he said, yeah -- yes, all the reporters
know it. And I said, again, I don't know that. I just wanted to be
clear that I wasn't confirming anything for him on this. And you know,
I was struck by what he was saying in that he thought it was an
important fact, but I didn't ask him anymore about it because I didn't
want to be digging in on him, and he then moved on and finished the
conversation, something like that.

3. In truth and fact, as LIBBY well knew when he gave this testimony, it was false in that:

a.
Russert did not ask LIBBY if LIBBY knew that Wilson's wife worked for
the CIA, nor did he tell LIBBY that all the reporters knew it; and

b. At the time of this conversation, LIBBY was well aware that Wilson's wife worked at the CIA;

Mr. Russert told the Special Prosecutor that, at the time of that
conversation, he did not know Ms. Plame's name or that she was a CIA
operative and that he did not provide that information to Mr. Libby.
Mr. Russert said that he first learned Ms. Plame's name and her role at
the CIA when he read a column written by Robert Novak later that month.

Obviously, Mr. Russert could have *HYPOTHETICALLY* said to Libby "All the reporters know that Wilson's wife is at the CIA and sent him on this trip" without being aware of her name or that she was an "operative". But did he?

MURRAY And the second
question is: Do we have any idea how widely known it was in Washington that Joe
Wilson's wife worked for the CIA?

MITCHELL: It
was widely known among those of us who cover the intelligence community
and who were actively engaged in trying to track down who among the foreign
service community was the envoy to Niger. So a number of us began to pick up on
that. But frankly I wasn't aware of her actual role at the CIA and the fact
that she had a covert role involving weapons of mass destruction, not until Bob
Novak wrote it.

Ms. Mitchell has since back-pedaled from that.

In addition Ari Fleischer told the court that on the morning of July 11 2003 he leaked the Plame news to John Dickerson (then of TIME) and David Gregory of NBC, Russert's subordinate in the Washington bureau.

So it may well be that two of Russert's subordinates had picked up on the Plame tidbit. Did they pass it on to Tim? This episode of "The Tim Russert Show", which aired immediately after the Libby indictment, looks like a group exercise in story-doctoring but it certainly suggests that the reporters would have shared news if they had it.

So why did Libby call Russert? A note was introduced in court today (we saw it but the jury perhaps never will) with media advice for Libby from Mary Matalin - she suggested Libby call Russert to complain about Chris Matthews' coverage of Wilson and the Niger trip. Russert has said that Libby called to complain about some NBC News coverage, but has not specified the complaint. Well, Libby did not call to vent about NBC's coverage of the Cheney's energy task force; he called to complain about their coverage of the Niger trip, which certainly improves the odds that the topic of who actually sent Joe Wilson came up. Michael Crowley and Jeralyn Merritt had picked out this July 8 Chris Matthews show as the likely object of Libby's ire; I had also suggested this July 9 episode, which features multiple uses of "behest".

And left unmentioned in Russert's testimony - Libby may also have launched into a tirade accusing Matthews of anti-semitism; Mickey Kaus broke this and provides a cogent discussion of the "anti-neocon=anti-Semite" meme that floated around for a while.

So - did Russert learn from Mitchell or Gregory that Wilson's wife was at the CIA? If so, Russert misled the grand jury and Fitzgerald's case will be taking on water. Strictly speaking, of course, even if Russert did tell Libby about Plame on the 11th, that can't explain how Libby was chatting about it with Miller on the 8th; however, if even Tim Russert could mislead a grand jury, what other reporters might also have done so?

Maybe (the defense will argue, and I am just thinking out loud) Libby's real "Reminder" was Andrea Mitchell in a phone call to Libby's house on July 6, following her guest-hosting of Meet The Press featuring her interview with Joe Wilson. Libby remembered the "Meet The Press" angle, figured it must have been Russert, checked the White House phone logs, saw he called Russert on the 10th, and back-fitted a story that defied space-time. Have Libby's home phone records for incoming calls been checked? And did Andrea Mitchell deny disclosing Plame to Libby - my impression from Well's opening statement (as well as her own ambiguous statements) is that she was never asked. In any case, that is just one hypothetical.

I expect the defense will hammer the "What did Russert know and when did he know it" angle. It appeared that Matt Cooper backed Ari Fleischer's claim to have leaked to Dickerson and Gregory, so the suspense mounts.

Wednesday was a good day for the Libby defense. Judy Miller, as the Wall Street Journal, the Washington Post, and the AP’s Matt Apuzzo noted was not an all star witness for the prosecution. I don’t like ploughing a field that’s already been tilled and refer you again to my media bloggers association colleague, Rory O’Connor who has some good thumbnails on the last portion of her testimony (1, 2).

The most amusing witness of the trial was up today, the charming Matt Cooper who with his sloppy notes, shoddy journalism and wry humor brought the old play “Front Page” to life before our eyes. He is the sort of person it would be fun to have dinner with, not the sort of person whose news story should be taken as a bit of serious journalism

Cooper is one of the prosecution’s chief witnesses and surely by now even those who believed in the “Elliott Ness with a law degree” fluff about the prosecutor must be thinking more along the lines of “Get Smart”. In a brutally devastating but gentlemanly low key way the defense destroyed a key prosecution witness. The defense showed through an examination of the internal Time emails and documents that the story that brought Matt Cooper into this, “A War on Wilson?” was something concocted out of thin air.

Cooper’s notes showed he claimed as "confirmation" a minute’s long “off the record conversation”( something never to be considered confirmatory) in response to a question about Wilson’s wife playing a role in this Mission . Libby seems in fact—from Cooper’s own notes (haphazard and mistyped as they are) --to have said very much what he said he did: That he heard that too but didn’t even know if that was true.

“Has the Bush Administration declared war on a former ambassador who conducted a fact-finding mission to probe possible Iraqi interest in African uranium? Perhaps.”

This war as it turns out existed only in in Matt’s mind. Unless you consider efforts to respond to inquiries about Wilson's claims with the truth to be war or to be as Cooper does “dissing” or “disparaging” Wilson. It seems Libby engaged in perfectly appropriate conduct such as noting all the elements of Wilson's claim were false (Something the bi-partisan Senate Select Intelligence Committee confirmed):Wilson was not sent at the “behest of the vice president; he did not refute, but rather supported, the existing intelligence that Iraq was seeking uranium in Niger; his report never made it to the vice president.

But beyond that, we saw how to meet a pressing deadline while on a summer weekend's jaunt at a country club, Matt took a noncommittal off the record response from Libby, pretended Rove’s statement about Plame had been confirmed by Libby and that he had a third confirmation from his colleague Dickerson who still claims that despite what Fleischer testified to the other day, Fleischer did not tell him about Plame but merely said that if he wanted to know who sent Wilson to Africa he should ask the CIA.

Even better, the quote in the article’s account of Libby’s response to Cooper is not in his notes, wasn’t even in his first draft of the story. It was a revision suggested by someone higher up the food chain at the magazine. It clearly fit better into an account which without factual basis claimed there was a “War on Wilson”.

Cooper, in defense of this shoddy journalism (the phrase “watching sausage being made” was muttered in the media room and not by the bloggers) reminded us that “The headline ends in a question mark."

OK, Cooper is sidingwith Ari Fleischer and telling us that John Dickerson got a Plame leak from Ari Fleischer, contra his denials. Cool. That should mean that David Gregory did as well, so Tim Russert should be an even hotter ticket tomorrow. [Yet Clarice, sitting in front of Dickerson at the courtroom, says Dickerson stood by his denial. See UPDATE]

For background, here is some Matt Cooper material: "War on Wilson?" is the article (with John Dickerson) that earned Cooper his subpoenas; "What I Told The Grand Jury" (or here) is mostly about Cooper and Rove but there is some Libby material; and here is a transcript of his appearance to discuss his testimony with Tim Russert on Meet The Press (Possible title - See Ya in Court Someday).

On Meet The Press, Cooper did hint about additional sources:

MR. COOPER: Yes, those were among the sources for that, yeah.

MR. RUSSERT: Are there more?

MR. COOPER: I don't want to get into it, but it's possible.

MR. RUSSERT: Have you told the grand jury about that?

MR. COOPER: The grand jury knows what I know, yes.

MR. RUSSERT: That there may have been more sources?

MR. COOPER: Yes.

I guess we should take that to be Dickerson (I had poo-pooed Cooper's revelation and guessed it was Bill Harlow, press flack at the CIA).

And as an ironist's delight, and because this just isn't his day - here is John Dickerson explaining at length why it is not plausible that Karl Rove forgot his leak to Matt Cooper. We look forward to a follow-up on why it is entirely plausible that Matt Cooper and Ari Fleischer think John Dickerson had the Plame scoop, but Dickerson has "a different memory".

UPDATE: Let's have a Dickerson rally! if Matt Cooper can insist that folks are disparaging Wilson by daring to rebut him, he can jump to conclusions about what Dickerson was telling him, especially if he is typing away under deadline pressure.

So maybe Dickerson told Cooper that a government official had made it clear that Wilson had been sent by a low-level CIA type, and Cooper provided the rest based on his Rove tip.

But the obvious problem is this - Ari Fleischer also thinks he gave Dickerson the tip. So Fleischer thinks he gave Dickerson a confirm on the wife and Cooper thinks Dickerson gave him a confirm on the wife, but Dickerson does not believe he got a confirm on the wife? Possible! Maybe Dickerson relayed a phrase fraught with meaning to insiders Ari and Matt but cryptic to Dickerson. Maybe.

January 30, 2007

JUDY MILLER
The indictment counts –32and 33-- relating to Judy Miller do not charge perjury or false statements—only obstruction:
In the indictment Fitzgerald asserts that Libby claimed: "32(c) LIBBY advised Judith Miller of the New York Times on or about July 12, 2003 that he had heard that other reporters were saying that Wilson's wife worked for the CIA but LIBBY did not know whether that assertion was true."(I have no recollection of the prosecution asking her this today.) and that "On or about June 23, 2003, LIBBY informed reporter Judith Miller that Wilson's wife might work at a bureau of the CIA"
(If I recall today’s proceedings accurately,Miller testified that Libby said Wilson’s wife might work at a bureau, and she after some puzzlement took that to be a section of the CIA) and that" On or about July 8, 2003, LIBBY advised reporter Judith Miller of his belief that Wilson's wife worked at the CIA; "
and that
"33(c) LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson's wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true;"
(I don’t recall this being asked on direct today)
Rory O’Connor has accurately described the direct testimony here: http://www.roryoconnor.org/blog/?p=223
And the cross examination here: http://www.roryoconnor.org/blog/?p=224
Miller had obviously prepped her testimony today with the prosecution and it was a startlingly different account than the "bafflegab" testimony earlier reported in pleadings and in her various accounts of that testimony. Like some other witnesses her memory is spotty on some critical issues, but like fine wine markedly has improved with age on others.
In the court’s media room where she is not a favorite her lapses inspired some snickers and Rory documents the more serious memory failures. Much of the afternoon was taken up with a dispute relating to the promise the prosecutor gave her when she agreed to testify that she would not have to name other sources. In the dispute leading up to her agreement to testify before the grand jury she filed an affidavit saying she had other sources besides Libby and had promised confidentiality to "one or more of them." When she agreed to testify after serving time in jail for contempt, Fitzgerald promised her that she would not have to name those other sources. Today she confirmed in her testimony that she did have other sources, that she was investigating the Wilson story before the Novak story was published and she confirmed that she had Wilson’s name, phone number and his extension in the steno book with the June 23 notes of the meeting, and that that information was there before her meeting with Libby.
At the grand jury, after being promised she wouldn’t have to name those sources, Fitzgerald asked her if she remembered those sources and she said she didn’t.
Today, the defense tried to explore the same matter with her—for impeachment purposes they said. Her attorney, Bob Bennett joined the prosecution and defense counsel in a long bench conference followed by further debate outside the jury’s presence and proffered as an officer of the court that his client has no recollection of who those sources are..
I have always considered the prosecution offer one which might well collide with the defendant’s right to a fair trial. The question, defense argues, is smaller. They want simply to put on the record that despite the affidavit, despite the long time in jail until she got that promise, she doesn’t
even know who the sources are, according to a proffer by her lawyer. The defense wants her to say that under oath. Will the court permit it? We should find out tomorrow. The judge wants to sleep on it.
Tom Maguire offers his pithy analysis on the judge’s dilemma:
[quote] Miller is being asked about other sources and claims she does not remember them. The defense wants to argue this:
1. IF she honestly to god has forgotten, then how credible is her memory of the Libby conversations?
2. IF she remembers but has claimed bad memory because she doesn't want to say, then Libby is losing a chance to confront a key witness - as noted, her sources might include Powell, Armitage, Wilson, Rove... who knows, except maybe Judy?
SO - Walton wants to avoid Judy staging a First Amendment meltdown; he also wants to avoid having Libby's people win an easy appeal.
And his choices seem to be:
1. Disallow the question - Libby will squawk;
2. Allow the question, threaten her with contempt -
Fitzgerald will squawk, because he sees this freight train coming - she will insist her memory has failed, and advise him to put an egg in his shoe and beat it.
3. Some middle ground - She can assure the court she remembers sources, but won't have to name them. This has the added benefit of assuring Walton a permanent gig on Comedy Central - c'mon, how is the Libby team supposed to refute that?
I welcome suggestions here
http://justoneminute.typepad.com/main/2007/01/david_gregory_w.html#comment-28483229
January 30, 200

A long day as Wells establishes that the original demand for documents sent by David Swartz on 10/03/03(the day Armitage confessed to the DOJ officials) specified the inquiry related to leaks of classified info to Novak per his 7/14 story and Newsday per its 7/21 story and there is no reason to believe Libby got any subsequent requests.

He seems to be establishing that when Libby told Addington that "he didn't do 'it'" "It" surely referred to what he knew DoJ was looking at.

Compter glitches have cut out some of my posts so pardon any omission..

Addington has no independent recollection of interview with FBI on Feb 2004..But the exhibit (D exh 178)shows that when he testifd about the meeting in July in the anteroom--He never used the term spouse or wife"

Addington turned over all exhibits he'd given to Alberto Gonzales who was then WH Counsel..Gonzales job was to protect the office of the president..Addington's to protect the officeof the veep.

Note GX 532--Addington reviewed it (Note from Cheney saying shouldn't sacrifice "staffer"--May have communicated with O'Donnelll aboout note--indicated he thought it was impt.

Top half seems to be in Libby's handwriting.Bottom in Cheney's--Cheney says "has to go out today--not going to protect one staffer and sacrifice the guy (this pres --scratched out)

who was asked to stick his neck in the meat grinder because of the incompetence of others."

From the rear this appears to be a very heated bench conference..(Dickerson is sitting behiknd me and I just heard him tell another reporter--obviously about Fleischer;s testimony that there was a time when Gregory and Fleischer were together on the trip outside his presence.I take it that's a suggestion Fleischer may still have told Gregory.)

Cross..Nothing unusual about the Libby conversation..Addington had worked at CIA..In addition to knowledge he had first hand, he knew what was in the subpoenaed documents and in the testimony of those interviewed by the FBI in his presence.

Was passenger on AF 1 on Julky 1 to Norfolk.

Testified from personal knowledge to FBI and GJ..At time he testified, he had more than personal knowedge--he knew what was in docs Libby provided under subpoena ane what others provided (docs and oral testimony)

Libby's handwriting difficulet to read--hundreds of pp of notes, read them all though Libby's handwriting hard to read.

One of Libby's notes which Addington reviewed before his OWN gj testimony (govt exh 104 and 104T(T is transliteration)

Addington back on stand..Testifying to a subpoena for documents..(Fitz is doing the questioning).Lists media names--(the entire gang)--OVP members were to provide docs responsive to inquiry.

Before investigation started (Sept 2003) Addington told Libby (as he'd told others) that whatever they told him there was no privilege and if they needed counsel with privilege they needed private counsel.

Libby said he didn't do "it"..no specification of "it".

Libby asked how one wouold know if someone was undercover at CIA.

Addington offered to obtain for Libby a copy of the IIPA.

Wells- reviews conversation--Addington confirms that he told Libby any conversation between them was not privileged